ML20051L082
| ML20051L082 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry  |
| Issue date: | 05/06/1982 |
| From: | Burger J, Laroche W, Sanger H, Wallace L TENNESSEE VALLEY AUTHORITY |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-664, ISSUANCES-OLA, NUDOCS 8205170312 | |
| Download: ML20051L082 (36) | |
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(Browns Ft:rry Nuclear ) (Low-Level Radioactive Plant, Units I, 2, and 3) ) Waste Storage Facility) i TENNESSEE VALLEY AUTHORITY'S BRIEF RESPECTING THE COMMISSION'S REVIEW OF THE ATOMIC SAFETY AND 1 LICENSING APPEAL BOARD DECISION e-Herbert S. Sanger, Jr. General Counsel Tennessee Valley Authority Knoxville, Tennessee 37902 Telephofie No. 615-632-2241 FTS No. 856-2241 Lewis E. Wallace Deputy General Counsel James F. Burger 503 T W. Walter LaRoche
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Attorneys for Tennessee Valley Authority Knoxville, Tennessee May 6, 1982 ia 2 0 517 o 3/A
4 l e I TABLE OF CONTENTS , I Page INTRODUCTION . . . . . . . . . . . . .. . . . ... . . . . 1 PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . 2 THE APPEAL BOARD DECISION . . . . . . . . . . . . . . . . . 6 SUMHARY OF POSITION . . . . . . . . .. . . . . . . . . . . 9 ARGUMENT . . . . . . . . . . . . . . . . . . . .. . . . . . 10 l i I The Appeal Board Has Raised a l Spurious Issue . . . . . .. . . . .. . . . . . . 10 j i A. Licensing of TVA's five-year storage proposal is not improper segmentation. . . .,. . . . . .. . . . . . . 10 5
. B. The Appeal Board erred in suggesting that TVA's long-term plans were material to this proceeding . ... . . . . . 13 II The Appeal Board Incorrectly Vacated the Licensing Board Order and Imposed Procedures. Inconsistent with NRC Rules and Policy . . . .. . . . . . . . . . . . . . . . 16 A. The Appeal Board decision contravenes longstanding rules and policies requiring specific pleadings at the outset of a proceeding . . . .. . . . . . . 16 B. The Appeal Board has confused the obligations of the NRC staff with '
those of the petitioners . . . . . . . . . . 21 C. The Appeal Board in remanding the proceeding raises an issue not' sought to be litigated by the petitioners . . . . . 23 III The Appeal Board Improperly Reinstated Contention 9 . . . . . .. . . . . . . . . . . . . 25 CONCLUSION . . . . . . . . .. . . . . . . . . . . . . . .. 29 APPENDICES f
I l 1 4 TABLE OF AUTHORITIES Cases: Page Armed Forces Radiobiology Research Inst., In re-(Cobalt-60 Storage Facility), NRC Docket No. 30-6931, memorandum and order (March 31, 1982) . . . . . . . . . . . . . . . . . 5 . Boston Edison Co., In re (Pilgrim Nuclear Power Station), 4 AEC 666 (1971) . ..... . . . . . . . . . . . . . . 17 Boston Edison Co., In re (Pilgrim Nuclear Power Station), ALAB-83, 5 AEC 354 (1972), aff'd sub nom. Union of Concerned Scientists v. AEC, 499 F.2d 1069 (D.C. Cir. 1974) . ............. . . . . . . 17 BPI v. Atomic Energy Comm'n, 502 F.2d 424 (D.C. Cir. 1974) . . . . . . . . . . . . . 20 Cleveland Elec. Illuminating Co., In re (Perry Nuclear Power Plant, Units 1
. and 2), ALAB-443, 6 NRC 741 (1977) . . . . . . . . . . . 28 Commonwealth Edison Co., In re (Carroll County Site), ALAB-601,
. 12 NRC 18 (1980) . . . . . . . . . . . . . . . . . . . . 4 Commonwealth Edison Co., In re (Quad Cities Station, Units 1 and 2), order (Oct. 27, 1981) . . . . .. . . . . . . . 22 Consolidated Edison Co. of N.Y., In re (Indian Point Nuclear Generating Unit 3), CLI-74-28, 8 AEC 7 (1974) . . . . . . . . . . . 9,24 Consumers Power Co., In re (Big Rock Point Nuclear Plant),
ALAB-636, 13 NRC 312 (1981) . . . . . . . . . . . .. . 22,27 Consumers Power Co., In re (Midland Plant, Units 1 and 2), ALAB-270, 1 NRC 473 (1975) . . . . . . . . . . . . . . . 28 Costle v. Pacific Legal Foundation, 445 U.S. 198 (1980). . . . . . . . . . . . . . . . . . . 19 Duke Power Co., In re (Amendment to Materials License SNM-1773), ALAB-651, 14'NRC
, 307 (1981) . . . . . . . . . . . . . . . . . . . . . . . 6,12-13,14 FPC v. Texaco, 377 U.S. 33 (1964) . . . . . . . . . . . . . . . . . . . 19
- Kansas Gas & Elec. Co., In re (Wolf Creek Generating Station, Unit No. 1), ALAB-279,- 1 NRC 559 (1975) . . . . . . . . 20 i
l l l l 1
- Cases: Page Kleppe v. Sierra Club, 427 U.S. 390 (1976) . ......... . . . . . . . . 14 Kerr-McGee Corp., In re .
(West Chicago Rare Earth Facility), CLI-82-2, 15 NRC (Feb. 11, 1982) (reported in CCH Nuc. Reg. Rep. 1 30,660 at 30,181) . . . . . . ................. 22 Metropolitan Edison Co., In re (Three Mile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612 (1977) . . . . . . . . . . 21 Metropolitan Edison Co., In re (Three Mile Island Nuclear Station, . Unit 2), ALAB-486, 8 NRC 9 (1978) . . . . . . . . . . . 25 Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979) . . . . . . . . . . . . 5,6,11,14,22 Northern States Power Co., In re (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188 (1973), affd, CLI-73-12, 6 AEC 241 (1973), aff'd sub nom. BPI v. Atomic Energy Comm'n, 502 F.2d 424 (D.C. Cir. 1974). . . . . . . . . . . . . . 19 Northern States Power Co., In re (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41 (1978), aff'd in part, remanded in part sub nom., Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979) . . . .......... . . . . . . . 27 Nuclear Fuel Servs. , Inc. , In re (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273 (1975) . . . . . . . . . . . . . . . 21 Pennsylvania Power & Light Co., In re (Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-6, 9 NRC 291 (1979) . . . . . . . . . . . . . . . . . . . . . . . 27 Portland Gen. Elec. Co., In re (Trojan Nuclear Plant), ALAB-531, 9 NRC 263 (1979) . . . . . . . . . . . . . . . E27 Public Serv. Co. of Oklahoma, In re (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC 775 (1979) . . . . . . . . . . . . . . 28 , Public Serv. Elec. & Gas Co., In re 1 (Salem Nuclear Generating Station, Unit 1), l ALAB-650, 14 NRC 43 (1981) . . . . . . . . . . . . . . . 27 Tennessee Valley Authority, In re ! (Browns Ferry Nuclear Plant, ' Units 1, 2, and 3), LBP-81-40,
, 14 NRC 828 (1981) . . .............. . . 2,5,6,11,12 1
ii Y f' .
O Cases: Pa_ge Tennessee Valley Authority, In re (Browns Ferry Nuclear Plant, Units 1, 2, and 3), ALAB-664,
- 15 NRC (slip op. Jan. 6, 1982) . . . . . 1,6-8,14,15,20,24-28 Tennessee Valley Authority, In re >
(Browns Ferry Nuclear Plant, Units 1, 2, and 3), ;ommission order (April 16, 1982) . . . . . . . . . . . . . . . . 1 Tennessee Valley Authority, In re (Browns Ferry Nuclear Plant, Units 1, 2, and 3), Licensing Board order (April 19, 1982) . . . . . . . . . . . . . . 2 Tennessee Valley Authority, In re , (Hartsville Nuclear Plant, [ Units lA, 2A, 1B, and 2B), ALAB-463, t 7 NRC 341 (1978) . ............. . . .. .. 28 Tennessee Val _ ley Authority, In re (Hartsville Nuclear Plant, Units lA, 2A, 1B, and 2B), ALAB-409, 5 NRC 1391 (1977) .......... . . . . . . . .. 28 Tennessee Valley Authority, In re
, (Hartsville Nuclear Plant, Units lA, 2A, IB, and 2B), ALAB-367, ,
l 5 NRC 92 (1977) .. . . . . . . . . . . . . . . .. . . 28
, Texas Utilities Generating Co., In re (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-36, 14 NRC (Dec. 29, 1981) (reported in CCH Nuc. Reg. Rep. H 30,656 at 30,159). . . . . . . . 24 i Toledo Edison Co., In re I (Davis-Besse Nuclear Power Station),
ALAB-157, 6 AEC 858 (1973) . . . . . . . . . . . .. . . 28 Union of Concerned Scientists v. AEC, 499 F.2d 1069 (D.C. Cir. 1974) . . . . . . . . . . . . 21-22,23,25 United States v. Storer Broadcasting Co., 351 U.S. 192 (1956). . . . . . . . . . . . . . . .. . . 19 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) . . . . . . . . . . . . . . . . . . 15,19,22 Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609 (1973). . . . . . . . . . . . . . . .. .. 19 Wisconsin Elec. Power Co., In re (Point Beach Nuclear Plant, Unit 2), 4 AEC 635 (1971) . . . . . . . . . . . . . . . . .. .. 17 Wisconsin Elec. Power Co., In re (Point Beach Nuclear Plant, Unit 2),
. ALAB-31, 4 AEC 689 (1971) . . . . . . . . . . . .. .. 17 iii ,
l 6
' Cases: Page Wisconsin Elec. Power Co., In re (Koshkonong Nuclear Plant, Units 1 and 2), CLI-74-45, 8 AEC 928 (1974) . . . . . . . . .. 18,19 Statutes:
National Environmental Policy Act of 1969, 42 U.S.C. $$ 4321 et seg. (1976; Supp. III, 1979) . . . . . ............... 3 Tennessee Valley Authority Act of 1933, 48 Stat. 58, as amended, 16 U.S.C.
$$ 831-831dd (1976; Supp. IV, 1980) . . . . . . . . . . 2 Regulations:
10 C.F.R. $ 2.714 (1981) . . ............ 4,5,16,21,23,28 10 C.F.R. $ 2.760a (1981) . ............... 24 Miscellaneous: 45 Fed. Reg. 54,511 (1980) . . . . . . . . . . . . . . . . 3 6 45 Fed. Reg. 81,697 (1980) . ............... 4 Statement of Policy on Conduct of Licensing Proceedings, In re-CLI-81-8, 13 NRC 452 (1981) ............... 9,20,29 b W IV
O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Nuclear Regulatory Commission In the Matter of )
) Docket Nos. 50-259 OLA TENNESSJE VALLEY AUTHORITY ) 50-260 OLA
) 50-296 OLA (Browns Ferry Nuclear Plant, ) (Low-Level Radioactive Units 1, 2, and 3) ) Waste Storage Facility)
TENNESSEE VALLEY AUTHORITY'S BRIEF RESPECTING THE COMMISSION'S REVIEW OF THE ATOMIC SAFETY AND LICENSING APPEAL BOARD DECISION INTRODUCTION The full Commission of the Nuclear Regulatory Commission (NRC) has granted the petitions of the Tennessee Valley Authority (TVA) and the 4 NRC staff to review the Appeal Board's decision, In re Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3), ALAB-664, 15 NRC (slip op. Jan. 6, 1982). The Commission accepted review of 3 two significant policy and procedural questions:
- 1. Whether the Appeal Board correctly determined that a ruling on the petitions for intervention in this proceeding must await the filing by the NRC staff of its environmental assessment and the opportunity for petitioners and TVA to comment on the assessment.
- 2. Whether the Appeal Board was justified in reinstating contention nine, despite petitioners' failure to address its dismissal by the Licensing Board in its brief to the Appeal Board [Commis-sion order (April 16, 1982) at 2]. ;
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s . The Commission, pending review, stayeh the effectiveness of the Appeal' Board decision which vacated the Licensing Board order dismissing the petitions to intervene (see In re Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3), LBP-81-40,14 NRC 828 (1981)).I In accordance with the Commission's request for written briefs on the two limited issues, this brief does not specifically address the other errors in the Appeal Board decision or additional matters relevant to the petitions to intervene raised below. However, TVA does not waive those issues. PROCEDURAL HISTORY TVA, a corporate agency and instrumentality of the United States established under the Tennessee Valley Authority Act of 1933, 48 Stat. 58, as amended,16 U.S.C. $$ 831-831dd (1976; Supp. IV,1980), owns and operates the three-unit Browns Ferry Nuclear Plant located in Limestone County, Alabama. Each unit is licensed for a thermal power level of 3,293 megawatts. Commercial operation of Units 1, 2, and 3 began 1 NRC counsel has informed us that, because in the NRC staff's view the Commission's order was unclear, the staff will not take any action on TVA's application or amendment to its operatis.g license (which if granted would permit use of the now completed storage facilities) until the Commission completes review. In addition, the Licensing Board by order dated April 19, 1982 has delayed any further action in the proceeding pending a decision by the Commission. These actions put TVA in the worst possible position regarding further delay in this matter. Until the Commission acts, neither the staff nor the Licensing Board will take any further action on the requested license amendment. 2 For the convenience of the Commission, TVA has attached (Appendix A) a copy of its November 23, 1981 brief to the Appeal Board that addresses
, .some of these subsidiary matters.
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,- I on August.1, 1974, March 1, 1975, and March 1, 1977, respectively.
Operation of Browns Ferry Nuclear Plant results in planned generation of low-level radioactive wastes (LLRW). .This waste consists of ion exchange and condensate demineralizer resins and miscellaneous trash I such as polyethylene boots, rubber shoe covers, plastic hose, gloves, pine crates, scrap iron, mops, and brooms. TVA must store or dispose of this waste in order to continue [ to operate the plant. Although a small amount of onsite storage capacity is available at the plant, TVA presently ships most of its LLRW to the licensed disposal facility at Barnwell, South Carolina. l Because space is limited at Barnwell, the facility operator restricts the volume of wastes it will accept from the various utilities and others shipping to e Barnwell. The disporal space allocated to TVA is gradually decreasing, j thus forcing TVA, like all others who ship to Barnwell, to seek alterna-q tive arrangements for managing its LLRW. . The TVA Board of Directors has authorized the TVA staff to study and develop methods to manage LLRW, including.onsite storage and volume reduction. As part of this evaluation, TVA prepared environmental assessments (EAs) in accordance with the National Eavironmental Policy ( , Act of 1969, 42 U.S.C. $$ 4321 et seq. (1976; Supp. III, 1979) (NEPA), that addressed both life-of plant storage and volume reduction at three
- . plants, including Browns Ferry. Those EAs concluded that insignificant environmental consequences would result from storage and volume reduction. .
Under TVA's NEPA procedures (45 Fed. Reg. 54,511 (1980)), an EA merely i evaluates the environmental consequences prior to auy decisionmaking and does notLcommit TVA to a particular action. 4 4 3 l
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On July 31, 1980 TVA submitted an application for life-of plant storage of LLRW at Browns Ferry. On November 17, 1980 TVA modified the
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request to ask for approval to store LLRW for up to five years. As permitted under NRC regulations, TVA has constructed several concrete modules for this purpose and they stand ready for use today. These facilities assure that plant operations can continue whether or not offsite disposal space temporarily is limited. TVA would use them whether or not it later chooses to utilize volume reduction technology.3 In response to the notice of an opportunity for hearing dated December 11, 1980 (45 Fed. Reg. 81,697), a number of persons filed identical petitions to intervene. These petitioners, through two additional filings by counsel (one postdating the April 10, 1981 prehearing conference) proferred nine " contentions," eight of which , sought solely to question TVA's purported future plans for volume reduction and long-term (life-of plant) storage of LLRW. TVA and the NRC staff opposed intervention because none of the nine proposed contentions sought to contest a relevant issue of fact with the required specificity of 10 C.F.R. $ 2.714 (1981). In addition, TVA argued 3 In the meantime, the TVA Board authorized the staff to begin pre-liminary design and investigative work that may eventually lead to procurement and installation of a volume reduction and solidification system at Browns Ferry as well as at two other plants. Although TVA may at some future time seek NRC approval to operate a volume reduction and solidification system at Browns Ferry, only the five-year proposa-1 is before the NRC and subject to the notice in this proceeding (In re Commonwealth Edison Co. (Carroll County Site), ALAB-601, 12 NEC 18, 24 (1980)). - 4 For a somewhat more detailed history, see TVA's appeal brief at 1-3. 4
l i l that petitioners, each of whom lived at least 30 miles from the site,
-lacked standing to intervene.5 The Licensing Board's October 2,1981 prehearing conference memorandum and order held that the petitioners had stated no contention which satisfied the requirements.of-10 C.F.R. 5 2.714. For that reason it dismissed the petitions and rejected the requests for hearing.
Specifically, the Board held that petitioners did not seriously question TVA's five-year storage proposal (LBP-81-40, supra, 14 NRC at 831). It found that petitioners focused on what appeared to them to be TVA's longer term LLRW management plans (id.). The Licensing Board ruled that TVA's five-year proposal had immediate, independent utility (id. at 832). The Licensing Board then applied Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979), in light of those two uncontested findings and , held the NRC's consideration of TVA's five year storage request did not improperly segment an LLRW management plan (LBP-81-40, supra, 14 NRC at 833). Consequently, it decided that all petitioners' contentions, which were based on a theory of improper segmentation, must fail as outside the scope of the proceeding (id.). The Licensing Board also investigated the adequacy of each contention and found that, aside from the failure of petitioners to 5 As pointed out at page 7 of TVA's appeal brief and argued at pages 10-13 therein, no legal presumption should attach to an operating license amendment of the limited nature here involved automatically conferring standing on these petitioners, each of whom lives at least 30
- miles from the plant (see also'In re Armed Forces Radiobiology Research .- Institute (Cobalt-60 Storage Facility), NRC Docket No. 30-6931, memo-randum and order at-9-13 (March 31, 1982) (Appendix B)). The Licensing Board and the Appeal Board declined to rule on the question of standing.
5
+n e n
- i raise relevant matters, many contentions were too vague to give adequate notice of what petitioners proposed to litigate or raised matters outside NRC's jurisdiction. The Licensing Board said contention 9 was the only one which addressed the application for five-year storage (id.
at 836). It held that the contention was impermissibly vague and raised matters beyond NRC's jurisdiction (id. at 837). Petitioners appealed. On January 6, 1982 the Appeal Board in ALAB-664 issued an unprecedented decision that vacated and remanded LBP-81-40 for reconsideration of the adequacy of petitioners' conten-tions (and provides petitioners with yet another opportunity to file adequate contentions) once the NRC staff has completed its full licens-ing evaluation. TVA and the NRC subsequently petitioned for review. The petitioners did not respond. The Commission's April 16 order accepts review on two issues as set out above. THE APPEAL BOARD DECISION The Appeal Board decided that the record below was insuffi-cient to support the Licensing Board's finding that five-year storage had independent utility (ALAB-664, slip op. at 8-9). The Appeal Board did agree with the Licensing Board (and this point was not disputed by petitioners before the Licensing Board or on brief to the Appeal Board) 6 Relying on Minnesota v. NRC, supra, and In re Duke Power Co. (Amendment to Materials License SNM-1773), ALAB-651, 14 NRC 307 (1981), ~ , the Appeal Board correctly determined (slip op. at 18-19) (see TVA's appeal brief at 20-24) that under appropriate circumstances NRC could segregate and separately license an activity which was a part of a
, larger plan if that activity had independent utility. There is no disagreement with this proposition.
6
that "five year storage . . . offer [ed] a necessary, short term solution to TVA's storage problem" (id. at 12). Equally important, the Appeal Board held that because volume reduction would require additional NRC approval "[als a matter of procedure, therefore, the petitioners will have a subsequent opportunity to present their concerns . . . " (id.). However, even though petitioners did not raise the matter on brief and never contested it before the Licensing Board, the Appeal Board questioned whether approval of five-year storage would "as a practical matter . . . unduly circumscribe the Commission's decisional alternatives when subsequent applications are submitted" (id.). Consequently, it vacated the Licensing Board order, , reinstated the petitions, and remanded the matter,to the Licensing Board for further consideration. , Before the Board makes that decision, however, it must await the submission of the staff's environ-mental assessment and invite TVA to comment on what options it might later pursue in light of its decision to proceed only with the five year storage plan at this time. The Board must also permit the petitioners to recast their contentions to plead with specificity (i) the respects in which they believe that approval of the five year plan would inevitably lead to operation of the waste reduction and solidification facility, and (ii) why the environmental effects of incineration cannot be adequately considered if and when TVA seeks approval of that aspect of its overall plan. The Licensing Board can then decide whether these revised conten-tionssatisfytheregyrementsforinterventionset out in 10 CFR 2.714 13/ Original Contentions 1-5 [ sic], along with
. contentions prompted by the staff's environ-mental assessment, will be considered under the general intervention standards. The . Licensing Board'may, if it wishes, consider Contentions 6-9 under the standards governing nontimely requests [ALAB-664, slip op. at 21].
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The Appeal Board reinstated every contention (numbers 5, 6, 7, 8, and 9 subject to timeliness), even though petitioners failed to brief the reasons for the Licensing Board's dismissal of contention 9 and did not address at all contentions 2, 6, 7, and 8. 4 As Appeal Board Chairman Eilperin's lucid dissent pointed out, petitioners have abandoned any interest they might have had in the five-year storage proposal (ALAB-664, slip op. at 35-36).7 He agreed with his colleagues that the Licensing Board correctly deter-mined that TVA needed the facility and that petitioners' procedural rights would not be prejudiced by approval of the five-year storage request (ALAB-664, slip op. at 24). He disagreed that petitioners might be practically precluded from raising volume reduction issues later and argued that petitioners had not alleged any'possible practical prejudice (id.). Chairman Eilperin rightly discerned that the majority had confused the obligations of the NRC staff to review the entire amendment with obligations of the petitioners to plead specifically what limited matters interested them at the outset (see ALAB-664, slip op at 27-29). He concluded by pointing out that the Appeal Board's decision really rested on grounds not briefed (or contested) by petitioners. The proper course consistent with past practice would be to treat the matter as having been waived (ALAB-664, slip op. at 36-37).
. 7 Petitioners reaffirmed that they " don't really have a problem with the addition of the storage facilities" (tr. at 117) at the April 1, 1982 prehearing conference (Appendix C, tr. at 117-18).
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SUMMARY
OF POSITION The Appeal Board authorizes a radical departure from the Commission's longstanding rules of practice and injects new signifi-cant delay into the licensing process. Parties and contentions must be delineated at the outset of a proceeding, not after the NRC staff has completed its review. This it done in order to focus issues. It reflects a balance of fairness among all parties. This helps the Licensing Board reach a sound decision in an expeditious manner on specific factual disputes. The Commission long ago stated that where intervenors did not properly raise issues NRC adjudicative boards are under no general
.- mandate to do so sua sponte where no important issue is involved (see
, In re Consolidated Edison Co. of N.Y. (Indian Point Nuclear Generating Unit 3), CLI-74-28, 8 AEC 7, 9 (1974)). Yet the Appeal Board majority 4
in ignoring that and later directives acted incorrectly. It raised an issue not in dispute and not briefed in order to vacate a well-reasoned, sound Licensing Board order. Tha Appeal Board's action disregards NRC
- procedure (10 C.F.R. $ 2.714) for initial pleading of relevant factual issues with specificity. It directly contravenes recently expressed Commission policy (In re Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 453-54, 457 (1981)) for balanced, efficient adjudication where real and relevant factual issues are s raised.
It is TVA's position that the Appeal Board as a matter of law and policy improperly vacated the Licensing Board order and adopted a 9
procedure, dependent on the NRC staff's environmental evaluation, contrary to NRC rules of practice. The Appeal Board's reinstatement of contention 9 is but a specific example of the larger problem. Petitioners did not address the Licensing Board's grounds for rejection and by doing so TVA asserts they waived any right to appeal. Accordingly, the Commission should reverse the Appeal Board's decision and affirm the Licensing Board's order dismissing the petitions. ! This case illustrates what happens when NRC's procedural rules, practices, and policies are loosely followed or simply ignored. One and one-half years after submitting a minor license amendment request, the effects of which no petitioner now questions, the most preliminary decision on whether or not a hearing will be held and what issues will be addressed still has not been made. ARGUMENT I The Appeal Board Has Raised A Spurious Issue. A. Licensing of TVA's five-year storage proposal is not improper segmentation. Petitioners claim in their appeal brief and through their contentions that TVA has a long-term plan for Browns Ferry that includes volume reduction and therefore NRC may not lawfully segment its review. Their legal conclusions are wrong. 10
. The NRC may license an activity with independent utility regardless of future plans. In Minnesota v. NRC, 602 F.2d 412 (D.C.
Cir. 1979), the court let stand an Appeal Board's denial of an inter-venor's attempt to delay spent fuel storage capacity expansion (analogous to what petitioners would have done here). The intervenor's position was based on the fact that the utility eventually would have to obtain an additional license amendment for long-term storage. [Intervenor] contends that NRC violated NEPA by improperly " segmenting" its consideration of the environmental impact of expansion of onsite storage capacity at Prairie Island. The theory is that because the present expansion of the spent fuel pool will accommodate the spent fuel assemblies produced at Prairie Island only until 1982, a request for further expansion is inevitable. Citin Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976), Minnesota argues that the NRC was required to take into account the environm~ ental impact of this " unavoidable consequence" of the current expansion. We find this argument without substance. Minnesota has not pointed to any consequence of future expansion that could not be adequately considered at the time of any requests for further erpansion. . . . The Staff specifically found that the licensing action here would not foreclose alternatives available with respect to other licensing actions designed to ameliorate a possible shortage of spent fuel capacity (noting that "taking this action would not necessarily commit the NRC to repeat this action or a related action") and that addressing the environmental impact associated with the proposed licensing action would not overlook any cumulative environ- ; mental impacts [ Minnesota v. NRC, supra, at 416 n.5 (emphasis added)]. , 1 As the Licensing Board found, petitioners do not contest the independent utility of five year storage (LBP-81-40, supra, at 832).
" Petitioners do not question this proposition. Nor does it appear 11
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likely that granting this authority would in any way prejudice NRC action on future TVA appl *. cations dealing with LLRW management" (id.; emphasis added). They have alleged no consequence from long-term storage or a volume reduction solidificat sn system that cannot be adequately evaluated at the time, if ever, that TVA should make a t licensing request for those items. Because petitioners had the burden to point out the consequences that could not be considered at a later time, _ the independent need for and utility of TVA's five-year storage proposal allows this action to proceed regardless of volume reduction (see In re Duke Power Co. (Amendment to Materials License SNM-1773), ALAB-651, 14 NRC 307 (1981) (Oconee-McGuire)). In the instance of a segmented non-federal plan,
, NEPA does not impose an inflexible requirement that the entire plan receive an environmental assessment at the time that the first segment is put before a . governmental agency for licensing action. Rather, it is settled that the agency may confine its scrutiny to the portion of the plan for which approval is sought so long as (1) that portion has independent utility; and (2) as a result, the approval does not foreclose the agency from later withholding approval of subsequent portions of the overall plan. See e.g., Atlanta Coalition v.
Atlanta Regional Commission, 599 F.2d 1333 (5th Cir.:1979); Swain v. Brinegar, 542 F.2d 364 (7th Cir. 1976); Sierra Club v. Froehlke, 534 F.2d 1289 (8th Cir. 1976); Trout palimited v. Morton, 509 F2d 1276 (9th Cir. 197..;; Indian Lookout Alliance
- v. Volpe, 484 F.2d 11 (8th Cir. 1973). As summarized by the Eighth Circuit in Froehlke, 534 F.2d at 1297:
The courts have been presented with the issue i of '.' segmentation" of impact statements in va' fr 3 contexts and we do not propose to at' u+t the impossible, namely, the enunciation
. of a general rule that will cover all cases.
The crucial dependence is upon the facts before the court in the particular case sub 12 r - - c -m, f -->- y ? 7
9 judice. Where it is found that the project before the court is an essentially independent one, an EIS for that project alone has been found sufficient compliance with the act. In such case th<re is no irretrievable commitment of resources beyond what is actrally expended in an individual project [14 NRC at 313]. The Appeal Board correctly held that Oconee-McGuire does not require the Licensing Board to delve into TVA's planning process because of TVA's federal status. "If the petitioners wish to challenge TVA's compliance with its separate environmental responsibilities, they must do so in another forum" (ALAB-664, slip op. at 19). This is the law of the case, since petitioners did not challenge this legal conclusion by filing a response to TVA's and NRC's petitions to review. Also, petitioners essentially have conceded (their appeal brief at 5) that under Oconee-McGuire the first segment of an overall management plan for wastes can be considered independently by the NRC. At this point, then, no cognizable dispute exists because petitioners have not contested the independent utility of five-year LLRW storage, and their assertions in the petitions about segmentation are legally wrong. B. The Appeal Board erred in suggesting that TVA's long-term plans were material to this proceeding. The Appeal Board has misconstrued the applicable standards for judging independent utility under NEPA. It erroneously determined that in order to find that the five-year storage proposal has independent utility the Licensing Board must find no " sufficient nexus" between 13
i five year storage and other planning options (ALAB-664, slip op. at 9). The nexus between present onsite storage and future LLRW management planning is entirely immaterial in any determination of independent utility (see Kleppe v. Sierra Club, 427 U.S. 390 (1976)). The proper test is to see if storage is needed and if now proceeding with storage will foreclose consideration of alternatives in the future (In re Duke Power Co. (Amendment to Materials License SNM-1773), ALAB-651, 14 NRC 307, 313 (1981) (Oconee-McGuire); Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979)). The need is not contested (ALAB-664, slip op, at 11-12). Thus, the only remaining question is whether five year storage forecloses the future full consideration of alternatives. The Appeal Board without explanation of its reasoning concluded that storing LLRW onsite for an interim period could foreclose future alternatives (ALAB-664, slip op at 15). Such reasoning fails to take into account that TVA's operating licenses now authorize the plant to generate LLRW incident to plant operations and to store that material onsite prior to shipment offsite. The requested amendment would do no more than change the present location of onsite storage from small temporary locations to larger facilities specifically designed to store LLRW and thereby increase the amount of material that could be kept. If long-term storage or volume reduction should 8 The fac; that TVA has already taken the risk to build several storage modules without seeking approval for volume reduction or longer term storage shows that TVA believes they are needed now, irrespective of any possible future alternatives. 14
~
eventually be proposed as a component of TVA's operations, the NRC staff must and still can fully evaluate those options at the time TVA requests a license amendment. No one contests that fact (ALAB-664, slip op. at 25). Volume reduction is a spurious issue in this proceeding. It is by no means an inevitable result of five year storage. Accordingly, even if the Appeal Board majority were correct, which it is not, in assuming that TVA has already decided upon some comprehensive low-level waste program for Browns Ferry,9 since the five year storage proposal clearly has independent utility, the existence of a long-term TVA plan for Browns Ferry is as immaterial to this proceeding as it was in = Oconee-McGuire. The Appeal Board's statements to the contrary are plainly wrong. 9 The Appeal Board's statement that TVA originally submitted a request for volume reduction (ALAB-664, slip op. at 12) and that TVA plans to use volume reduction (id. at 4) is wrong. TVA's environmental document was an assessment for NEPA purposes. It does not reflect a past decision but is rather to be used in making a decision. The Appeal Board also erred in saying that NEPA mandates that the environ-mentally preferable option be implemented (ALAB-664, slip op. at 17). There is no such substantive legal requirement (see Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978)). 15
- j. . -
4 II The Appeal Board Incorrectly Vacated the Licensing Board Order and Imposed Procedures Inconsistent with NRC Rules and Policy. A. The Appeal Board decision contravenes longstanding rules and policies requiring specific pleadings at the outset of a proceeding. NRC procedural regulations clearly require at least one timely, specific, relevant, factual contention to be pleaded before intervention is sanctioned (and in the case of an operating license amendment before a hearing will be held) (10 C.F.R. $ 2.714 (1981)).10 As established above, however, petitioners have not properly identified any cognizable issue in this proceeding. The Appeal Board in permitting the petitioners to try again turns the pleadink Process upside down, wholly neglecting the basic policy considerations which impose upon prospective intervenors the obligation of identifying specific factual issues at the outset of a proceeding. 4 The NRC pleading rules balance the rights of potential inter-venors with those of the applicant, NRC staff, and Licensing Board to know at the outset of a proceeding with clarity and precision what . arguments are being advanced. In its first order explaining the purpose of the expanded rules of practice in 1971, the Commission stated that in accepting petitions to intervene 10 The need for specific, relevant, factually based contentions, especially when a hearing would not otherwise be held, is argued in TVA's appeal brief at 14-19. TVA also sets forth at pages 24-35 in detail why each contention fails to comply with 10 C.F.R. $ 2.714. 16 l l
'l i
l
- l
[a] cardinal prehearing objective . . . will be to establish, on as timely a basis as possible, a clear and particularized identification of those matters related to the issues in this proceeding which are in controversy. As a first step in this prehearing process, we expect the Board to obtain from petitioners a detailed specification of the matters which they seek to have considered in the ensuing hearing [In re Wisconsin Elec. Power Co. (Point Beach Nuclear Plant, Unit 2), 4 AEC 635, 636 (1971) (emphasis added)]. Accord, In re Boston Edison Co. (Pilgrim Nuclear Power Station), 4 AEC
- 666, 667-68 (1971).
In the Commission's view, the course outlined above is central to the proper focus and orderly conduct of the prehearing process, including the scope of appropriate discovery, and of the later hearing itself [id. at 668]. This is especially important when a hearing will not otherwise be held except on receipt of an adequate petition to intervene (see In re Wisconsin Elec. Power Co. (Point Beach Nuclear Plant, Unit No. 2), ALAB-31, 4 AEC 689, 690 (1971); accord, In re Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-83, 5 AEC 354, 358 (1972), aff'd sub nom. Union of Concerned Scientists v. AEC, 499 F.2d 1069 (D.C. Cir.1974)). [ Petitioner) does not challenge the guidance given to this Licensing Board in the hearing notices or the Licensing Board's compliance with that guidance. Instead, [ petitioner] asserts that the Licensing Board must conduct what amounts to a de novo review of all matters (i.e., radiological safety as well as environmental) relating to the issuance of the operating license, whether or not in contro-versy. As we have previously held with respect to radiological safety matters, a proceeding of this type is not intended to encompass a de novo review but is " intended to resolve specific problems with
, respect to the plant in question." Absent a petition for intervention raising such problems, nc public hearing need be held [5 AEC at 358; , footnote omitted].
17 l 1
Traditionally, based on the information contained in the applicant's submittal, would-be intervenors have been required and have been able to frame at least one adequate factual contention at the outset of a proceeding. While it is true that additional issues may be identified or prior issues refined upon discovery or with the issuance of the NRC staff's review documents, this does not change the obligation of potential intervenors to frame issues at the outset of a proceeding (In re Wisconsin Elec. Power Co. (Koshkonong Nuclear Plant, Units 1 and 2), CLI-74-45, 8 AEC 928, 929 (1974)). The argument that petitioners' obligation to be specific at the outset of a proceeding is somehow unfair has already been resolved by the Appeal Board, Commission, and courts. Section 2.714(a) reflects the administrative conclusion that the effectuation of the purposes of the Atomic Energy Act requires that the request for a hearing (in the form of a petition for intervention) include an identification of the contentions which the petitioner seeks to have litigated in the matter. To our mind, there is nothing unreasonable about this conclusion. It certainly would not further-- but indeed would impede--the orderly carrying out of the adjudicatory process to accord an individual the status of a party to a proceeding in the absence of any indication that he seeks to raise concrete issues which are appropriate for adjudication in the proceeding. This is particularly so on the operating license level where, by virtue of Section 189a. of the Act itself, there is no mandatory hearing requirement; i.e., the license may be issued without a hearing in the absence of a proper request therefor. It is difficult for us to perceive any rational basis for triggering the hearing mechanism without regard to whether there are, in fact, any questions which even possibly might warrant resolution in an adjudicatory proceeding. Cf. Citizens for Allegan County, Inc. v. FPC, 414 F.2d 1125 (D.C. Cir. 1969); Environmental Defense Fund v. Ruckelshaus, 439 F.2d 584, 594-595 (D.C. Cir. 1971). 18
We are unimpressed with petitioners' suggestion (Br. pp. 2-3) that it is not possible for them to state specific contentions until after they have been permitted to intervene and to avail themselves of discovery procedures. In the first place, we can take official notice of the fact that, without prior resort to discovery, BPI has filed contentions in several past cases. More fundamentally, the suggestion ignores the fact that there is abundant information respecting the particular facility available to the public at the time of the publi-cation of the notice of hea.ing er of an opportunity for hearing--including at least the applicant's detailed safety analysis and environmental reports [In re Northern States Power Co. (Prairie Island Nuclear Generating Plant, Uniti 1 and 2), ALAB-107, 6 AEC 188, 191-92 (1973) (footnotes omitted), aff'd, CLI-73-12, 6 AEC 241 (1973), aff'd sub nom., BPI v. Atomic Energy Comm'n, 502 F.2d 424 (D.C. Cir. 1974); accord, Koshkonong, supra]. The procedures that delineate under what circumstances a hearing is provided are left to the discretion of the agencies to which Congress has confided responsibility for substantive judgment (Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524 (1978)). The obligation to show that there are material factual issues (as opposed to legal issues) in dispute before a hearing is held is one the Supreme Court has upheld on a number of occasions (see, e.g., Costle v. Pacific Legal Foundation, 445 U.S. 198, 214 (1980.'. Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 621 (1973); FPC v. Texaco, 377 U.S. 33, 39 (1964)). We do not think Congress intended the Commission to waste time on applications that do not state a valid basis for a hearing. If any applicant is aggrieved by a refusal, the way for review is open [ United States v. Storer Broadcasting Co., 351 U.S. 192, 205 (1956)]. e 19
The pleading obligation of petitioners has two purposes. The first is to focus the proceeding on issues of fact in dispute. The Commission's regulations . . . prescribe that [ petitioners] must be specific as to the focus of the desired hearing. In this manner the Commission narrows those within the larger class to those entitled to participate as intervenors, and thus to assist the Commission in the resolution of the issues to be decided. In doing so we do not think the agency transgresses its legislative charter [BPI, supra, at 429]. The second, as the Appeal 'Joard has described, is one of fairness. The applicant is entitled to a fair chance to defend. It is therefore entitled to be told at the outset, with clarity and precision, what arguments are being advanced and what relief is being asked . ... So is the Board below. It should not be necessary to speculate about what a pleading is , supposed to mean [In re Kansas Gas & Elec. Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-279, 1 NRC 559, 576 (1975); emphasis added). The Commissioners have noted a similar policy consideration. Fairness to all involved in NRC's adjudicatory procedures requires that every participant fulfill the obligations imposed by and in accordance with applicable law and Commission regulations. While a board should endeavor to conduct the proceeding in a manner that takes account of the special circumstances faced by any participant, the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding doet not relieve that party of its hearing obligations [ Statement of Policy, supra, 13 NRC at 454]. As Chairman Eilperin correctly points out (ALAB-664, slip op, at 30), the majority's cryptic statement that the right to inter-vene may turn on the staff's conclusions is no more than a bootstrap 9 20 l I
_- . = . . _ -_ argument.I It makes no attempt to address the basic policy underpinnings of section 2.714. The Appeal Board in allowing petitioners to wait until NRC has completed its evaluation, some one and one-half years after the proceeding began, violated the cardinal rule on which NRC's system of practice is based, f B. The Appeal Board has confused the obligations of the NRC staff with those of the petitioners. c) The Appeal Board draws support for turning the pleading process upside down through confusing what the NRC staff must do to approve the license amendment with petitioners' obligation te properly plead an issue. Petitioners' obligation--that of identifying contested
. issues--is different from that of the NRC staff, which must review all relevant issues. In confusing these two fundamental roles the Appeal Board errs.
The obligations of the petitioners to plead specific, factual, relevant contentions under section 2.714 and the Board's duty to resolve them are independent of the NRC staff's duty to review the license amendment request and are based on o.Iferent considerations (see Union of Concerned Scientists, supra, 499 F.2d at 1077-78). The NRC staff 11 In effect, the Appeal Board is also permitting the petitioners to ignore the clear requirements of timely pleading prior to the first prehearing conference without petitioners having justified their delay in doing so. The Appeal Board cannot direct a Licensing Board to accept late-filed recast contentions without requiring petitioners to address the five factors of 10 C.F.R. $ 2.714(a)(1) (In re Nuclear Fuel
+ Servs., Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273 *
(1975); In re Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612, 616 n.6 (1977)). P 21
(and ACRS) are responsible for compiling the record on all relevant issues. The Board resolves only contested issues. A Licensing Board is not under an obligation to review all matters de novo. Congress did not intend for further hearings to be held absent a bona fide interven-tion (id.). Petitioners must show why a hearing is " worthwhile." They do
"'not become entitled to an evidentiary hearing merely on request, or on a bald or conclusory allegation that such a dispute exists'" (In re Kerr-McGee Corp. (West Chicago Rare Earth Facility), CLI-82-2, 15 NRC (Feb. 11, 1982) (reported in CCH Nuc. Reg. Rep. 1 30,660 at 30,181, 30,195 n.29) (a broad allegation that an EIS is needed would not be sufficient under section 2.714)). They have the burden to explain how the consequences of future actions at Browns Ferry cannot be adequately considered at a later time (Minnesota v. NRC, 602 F.2d 412, 416 n.5; i see also Vermont Yankee, supra, at. 553-54).
The petitioners have failed to specify why an EIS is needed for NRC's licensing action relying solely on gene lalized legal conclusions. Spent fuel capacity expansion, a seemingly more compelling situation, has been permitted without an EIS in every case reaching final decision (see In re Consumers Power Co. (Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312 (1981); In re Commonwealth Edison Co. (Quad Cities Station, Units 1 and 2), order (Oct. 27,'1981)). It appears incongruous for TVA's request to expand LLRW storage to be subject to the preparation of an EIS when its spent fuel capacity expansion request was granted at Browns Ferry as well as numerous other plants without one. Thus the 22
e Appeal Board should have required the petitioners to comply strictly with the provisions of 10 C.F.R. S 2.714. Having failed to allege specifically why an EIS is needed, their contentions were invalid.
-There is no indication from the Appeal Board how it considered petitioners so unusually handicapped that the simple requirements for timely pleading could be ignored.
The Appeal Board presumes that petitioners must have additional documentation by the NRC staff and TVA in order to be able to tell whether an interest will in fact be affected and to frame contested issues. Apart from being contrary to fundamental Commission practice and policy regarding the burden imposed on petitioners under section 2.714, this position makes no practical sense (Union of Concerned Scientists, supra, at 1077). It automatically injects several years into the hearing process, because no p, rehearing procedures can commence until the issues are delineated. Petitioners' role is not to independently evaluate the record. Nor by broad assertions can petitioners impose that duty on the Licensing Board (id.). That is the job of the NRC staff. Petitioners must raise and must plead specific issues of factual dispute at the outset of a proceeding. The Appeal Board decision simply confuses the fundamental distinction among roles. C. The Appeal Board in remanding the proceeding raises an issue not sought to be litigated by the petitioners. The Appeal Board reversed the Licensing Board and remanded the proceeding to resolve an issue not raised below nor briefed by the l 23 i I
5 petitioners (ALAB-664, slip op, at 12). Aside from being contrary to NRC policy, this directly violates NRC procedural rules. NRC procedure prohibits a Licensing or Appeal Board from raising any issue sua sponte, except under very limited circumstances. The Appeal Board may look only at " serious" issues not raised by the parties below (see 10 C.F.R. $ 2.760a (1981)). That authority must be exercised with care. The Boards have an obligation to make an affirmative a finding of the need to address the issues the Licensing and Appeal Boards raise on their own (In re Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units I and 2), CLI-81-36, 14 NRC
' (Dec. 29, 1981) (reported in CCH Nuc. Reg. Rep. 1 30,656 at 30,159).
To pose a question merely meeting the requirements of section 2.714 will not satisfy this obligation (id.). No serious issue falling
, within the ambit of section 2.760a is raised here, nor has the Appeal Board identified one.
The Commission has specifically warned against broad ranging inquiries in the past. The Licensing Board has mistakenly assumed that it is under a mandate from the Appeal Board to explore and resolve specific issues in operating licensing proceedings which have not been raised by the parties. We affirm the Appeal Board's finding that none of its decisions require such an undertaking. To have a Licensing Board engage in an idle exercise examining issues just for the sake of examination-- when the parties have not raised such matters,.and the. Board is satisfied that there is nothing to inquire about--would serve no useful purpose [ Indian Point, supra, 8 AEC at 8]. 4 . w 24
i i e Again, as.the court in Union of Concerned Scientists, supra, at 1077, points out, to have the Licensing Board independently evaluate uncontested issues would inappropriately intrude on the NRC staff's function, would be contrary to congressional intent, and would be impractical. The issue which the petitioners must address on remand (ALAB-664, slip op. at 21) is one they have never sought to litigate. Petitioners have not raised the issue of need, nor alleged that the grant of a five-year storage license would practically foreclose alternatives, thereby forcing the NRC to approve a future volume reduction request. They hIave not challenged the Licensing Board's findings on those matters. Consequently, the Appeal Board erred in questioning matters supported by Licensing Board findings but not challenged below, and the Licensing Board order must be affirmed. t III The Appeal Board Improperly Reinstated Contention 9. As Chairman Eilperin correctly notes in his dissenting opinion (ALAB-664, slip op at 34-36), the Appeal Board reinstated contention 9 12 Moreover, it is clear that prior practice precludes petitioners from taking up this issue, a matter never raised below, on appeal.
"Intervenors also have never advanced any particular challenge to the calculations used to demonstrate the ability of the plant to with-stand a design-basis crash. They thus never raised the issue below, and.
accordingly have no right to raise it here. See 1ennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A,1B, 2B), ALAB-463,
*- 7 NRC 341, 351-52 (March 17, 1978)" (In re Metropolitan Edison Co.
f (Three Mile Island Nuclear Station, Unit 2), ALAB-486, 8 NRC 9, 28 n.36 (1978)).
-25
, ,, r , .
T e (subject to a challenge on timeliness) even though petitioners' appeal brief did not adequately address that item. The Appeal Board's action clearly conflicts with prior law which treats as waived unbriefed or inadequately briefed matters on appeal. Proposed contention 9 reads in pertinent part: The environmental impacts of TVA's proposal for
'five year LLRW storage . . . are not adequately discussed . . . because there is a failure to consider the costs of decoumissioning of the storage modules or other long term disposition of the LLRW at the conclusion of the five year storage (petitioners' amended contentions, contention 9].
The Licensing and Appeal Boards agreed that to the extent this contention challenged TVA's environmental assessment it could not be considered. The Licensing Board further found the contention too e vague to be admitted (slip op at 17) because it did not indicate what e five-year storage costs were challenged and why the costs should be considered. Petitioners simply had furnished no factual orientation from which it could be determined how they would have the Licensing Board evaluate decommissioning costs. , In their appeal beief petitioners in passing mentioned conten-tion 9 in relation to impacts from volume reduction, but failed to brief the adequacy of the contention with respect to five-year storage. The Appeal Board reinstated contention 9, saying that costs both economic and environmental could be considered with respect.to five-year storage (ALAB-664, slip op. at 19-20).13 The Appeal Board also suggested e
. 13 All three acabers indicated that the ultimate disposal of LLRW could be considered. Where such wastes will go and how much disposal will cost are, however, irrelevant in this proceedingt Contention 9 i l
26 I 1
without support that the costs of storage might preclude certain options at the end of five years (id. at 16-17). Petitioners' proposed conten-tion, in contrast, lacks specificity in that regard. The resurrection of contention 9, as Chairman Eilperin states, flows also from the Appeal Board majority's basic confusion regarding the obligations of the NRC staff and of intervenors (id. at 35-36). The staff must consider all relevant costs, but the petitioners must speci-fically indicate what aspect they contest. Moreover, as he points out, prior practice dictates that an unbriefed matter be treated as waived (id. at 36). 13 (cont.) raises the issue of the costs of ultimate waste disposal
, in the context of an operating license amendment. LLRW is generated at the plant, the operation of which is not at issue in this proceeding.
There are certain costs assceiated with this waste which must be incurred
, in its ultimate disposal whether or not TVA stores LLRW before disposal.
In short, petitioners have tried to raise the issue of operating costs and that cannot be litigated here.
"In this connection, it should be noted that the Prairie Island units were licensed for operation on the basis that they would generate radioactive wastes in a certain amount over the full term of their licenses. The amendment in question does not alter the situation; i.e., the proposed increase in the storage capacity of the spent fuel pool would not occasion the generation of more wastes than had been previously projected" (In_re Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 46-47 n.4 (1978), aff'd in pertinent part and remanded on other grounds sub nom.
Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979)). Accord, In re Portland Gen. Elec. Co. (Trojan Nuclear Plant), ALAB-531, 9 NRC 263 (1979) (spent fuel pool capacity expansion); In re Consumers Power Co. (Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312 (1981); In re Public Serv. Elec. & Gas Co. (Salem Nuclear Generating Station, Unit 1), , ALAB-650, 14 NRC 43 (1981). Moreover, petitioners may not litigate l matters related to the ultimate disposal of wastes in any event (see, e.g., In re Pennsylvania Pcwer & Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-6, 9 NRC 291 (1979) (the issue .
. of offsite transportation of wastes is outside the scope of an operating l , license proceeding as is the ultimate disposition of these wastes).
9 27
i r C
.o TVA agrees that the petitioners had an obligation to state a i
specific factual contention under 10 C.F.R. $ 2.714 regarding the costs of decommissioning. The Licensing Board was correct in dismissing the contention on that ground. Regardless of the merits, however, of the Licensing Board's action, petitioners did not adequately address the contention in their brief. Therefore, the contention should remain stricken.I Chairman Eilperin cites In re Tennessee Valley Authority (Hartsville Nuclear Plant, Units IA, 2A, IB, and 2B), ALAB-463, 7 NRC 341, 370 (1978) (both petitioners' counsel here were intervenors' counsel there), as support for dismissing number 9 (ALAB-664, slip op. at 36-37 n.10). Of similar effect are In re Toledo Edison Co. (Davis-2 Besse Nuclear Power Station), ALAB-157, 6 AEC 858, 859 (1973); In re o Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B, and 2B), ALAB-409, 5 NRC 1391, 1397 (1977), and ALAB-367, 5 NRC 92, 104 n.59 (1977); In re Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 744 (1977). It is not enough simply to mention the contention. An argument which does not 4 contain sufficient breadth is tantamount to an abandonment (In re Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-270, 1 NRC 473, 476 (1975); In re Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC 775, 805 (1979)). o 14 Similarly, any appeal respecting contentions 2, 4, 6, 7, and 8 was also waived. e 28
l l i e By neglecting to address their brief to the Licensing Board's grounds for dismissing the contention, petitioners have waived any right to challenge the Licensing Board's disposition of it. Consequently, the Appeal Board erred in reinstating contention 9 and others not adequately briefed. CONCLUSION The Licensing Board was fully justified in dismissing the petitions to intervene and denying the requests for a hearing. These petitioners, despite repeated opportunities, have failed to provide a sufficient basis for intervention in a timely manner. Implicit in the Commission's Statement of Policy on Conduct of Licensing Proceedings e 2 is the need for prospective intervenors to comply with NRC procedural o regulations, or else all attempts to ensure a balanced and efficient hearing process will fail. The Commission and courts have recognized that the NRC rules of practice are not some byzantine system of regula-tions imposed simply for the sake of complexity, but rather are designed to obtain a focused resolution of factual issues. Given their inadequacy, denial of these petitions would be consistent with long-established NRC policy. Finally, rejecting these petitions, as the Appeal Board and 0 t 4 29
O o Licensing Board recognize, will not preclude any person from intervening in a later proceeding that might consider TVA proposals for LLRW if that person can demonstrate an interest which would be affected. For the foregoing reasons, the Licensing Board's order dismissing the petitions should be affirmed and the Appeal Board's decision reversed. Respectfully submitted, A Rks - AA & 1(erbert S. Sanger, Jr. g General Counsel t Tennessee Valley Authority Knoxville, Tennessee 37902 a lit 4A Le'w is E. Wallace b cl -
' Deputy General Counsel O
, s atti c44t~
' es F. Burger j
. A W. Walter LaRoche
, sAttorneys for Tennessee Valley Authority Knoxville, Tennessee May.6, 1982 c
E o
1
\'
*s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )
) Docket Nos. 50-259 OLA TENNESSEE VALLEY AUTHORITY ) 50-260 OLA
) 50-296 OLA (Browns Ferry Nuclea:- Plant, ) (Low-Level Radioactive Units I, 2, and 3) ) Waste Storage Facility) r TENNESSEE VALLEY AUTHORITY'S BRIEF IN OPPOSITION TO PETITIONERS' APPEAL OF THE LICENSING BOARD'S PREHEARING CONFERENCE MEMORANDUM AND ORDER RULING ON PETITIONS TO INTERVENE AND
. ' REQUESTS FOR HEARING o
a
- Herbert S. Sanger, Jr.
General Counsel
- Tennessee Valley Authority Knoxville, Tennessee 37902 Telephone No. 615-632-2241 FTS No. 856-2241 Lewis E. Wallace Deputy General Counsel James F. Burger W. Walter LaRoche 4
Attorneys for o Tennessee Valley Authority APPENDIX A
t .' TABLE or CONTENTS Page PROCEDURAL HISTORY. . . . .. . . . . . . . . . . . . . . . . . 1 ISSUES PRESENTED ON APPEAL. . . . . . . . . . . . . . . . . . . 3 STATEMENT . . . . . . . . . . . .. . . . . . . . . . . . . . . 4
SUMMARY
OF POSITION . . . . . . .. . . . . . . . . . . . . . . 7 ARGUMENT. . . . . . . . . . . . .. . . . . . . . . . . . . . . 10
- 1. Petitioners Have No Standing lo Intervene . . . . . . . . . 10 II. Petitioners Have Failed To Set Forth Even One Adequate Contention . . . .. . . . . . . . . . . . . . 14 A. General considerations. . .. . . . . . . . . . . . . . 14
- 1. Specificity Is Required . . . . . . . . . . . . . . 14 a
. 2. Contentions Must Raise Contested Factual Issues. . . .. .. . . . . . . . . . . . . 15
- 3. The Notice Limits the Scope of the Proceeding. . . . . . . . . . . . . . . . . . . 17
- 4. This Proceeding Does Not Involve a De novo Review of All Possibly Relevant Matters . . . . . . 18
- 5. No EIS Is Needed for TVA's Five year Storage Proposal Because of its Potential Long-term Planning Options. . . . . . . . . . . . . 20 B. No contention complies with the requirements of 10 C.F.R.
$ 2.714 (1981). . . . . . . . . . . . . . . . . . . . . 24
- 1. Contentions 1, 2, and 3 Are
, Inadequate. . . .. .. . . . . . . . . . . . . . . 26
- 2. Contention 4 Is Inadequate. . . . . . . . . . . . . 28 w
, 3. Contentions'5 and 6 Do Not Conform to Section 2.714. . . . . . . . . . . . . . . . . . 28
. 4. Contention 7 Is Inadequate. . . . . . . . . . . . . 31 i
l o u* Page i 5. Contention 8 Fails To Conform to Section 2.714 . . . . . . . . . . . . . . . . . . . 32
- 6. Contention 9 Is Inadequate. . . . . . . . . . . . . 33 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . 35 APPENDIX (Unpublished Decisions) 5 0
M ii
4
, TABLE OF AUTHORITIES Cases: Page Allied-Gen. Nuclear Servs., In re, (Barnwell Fuel Receiving & Storage Facility),
LBP-76-24, 3 NRC 725 (1976) . . . . . . . . . . . . . . . .15,27 Armed Forces Radiobiology Research Inst. , In re, (TRIGA-Type Research Reactor) special prehearing conference memorandum and order (Aug. 31, 1981) . .... . . . . . . . . . . . . 15 Arizona Pub. Serv. Co., In re, (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), memorandum and order (April 16, 1981). . . . .... . . . . . . . . . . . . . . 33 Atlanta Coalition on the Transp. Crisis, Inc. v. Atlanta Regional Comm'n, 599 F.2d 1333 (5th Cir. 1979) . . . . . . . . . . . . . . . 23 Boston Edison Co., In re, (Pilgrim Nuclear Power Station), ALAB-83, 5 AEC 354 (1972), aff'd sub nom. Union of Concerned Scientists v. AEC, 499 F.2d 1069 (D.C. Cir. 1974) . . . . . . . . . . . .18-19 Bradley v. United States Dep't of Housing & Urban Dev., a 658 F.2d 290 (5th Cir. 1981). . . . . . . . . . . . . . . . 23 Commonwealth Edison Co., In re, (Byron Nuclear Station, Units 1 and 2), LBP-80-30, 12 NRC 683 (1980). . . . . . . . . . . . . . . . 31 Commonwealth Edison Co., In re, (Carroll County Site), ALAB-601, 12 NRC 18 (1980). . . . ... . . . . . . . . . . . . . . . 18 Commonwealth Edison Co., In re, (Quad Cities Station, Units 1 and 2), order (Oct. 27, 1981). . . ....... . . . . . . . . . . 20 Consolidated Edison Co. of N.Y., In re, (Indian Point Nuclear Generating Unit 3), CLI-74-28, 8 AEC 7 (1974). ..... . . . . . . . . . .16,19,20 Consumers Power Co., In 're, (Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312 (1981) . . . . . . . . . . . . . . . .20,34 Detroit Edison Co., In re, (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73 (1979). . . . . . . . . . . . . 30 ~ Duke Power Co., In re,
* (Amendment to Materials License SNM-1773), 1 ALAB-651, NRC , Nuc. Reg. Rep. l (CCH) T 30,613 (1981) . .. . . . . . . . . . . . . . . . . 9,22 , )
I
)
iii
Cases: Page
,, Duquesne Light Co., In re, (Beaver Valley Power Station, Unit No. 1),
LBP-78-16, 7 NRC 811 (1978), (operating license amendment), aff'd, ALAB-484, 7 NRC 984 (1978) . . . . . . . . . .16,19,26-27 Florida Power & Light Co., In re, (Turkey Point Nuclear Generating, Units 3 and4),LBP-1-A4,13NRC6J7 (19 81 ) . Cd . ' X . . . A.t- A L - (, (s o . . . . . . . . . . . . 16 Gulf States Utils. Co., In re, (River Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222 (1974). . . . . . . . . . . . . . . . .16-17 Houston Lighting & Power Co., In re, (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377 (1979) . . . . . . . .. . 11-12,13 Houston Lighting & Power Co., In re, (Allens Creek Nuclear Generating Station, ~ Unit 1), ALAB-582, 11 NRC 239 (1980). . . . . . . . . . . . 11 Kansas Gas & Elec. Co., In re, (Wolf Creek Generating Station, Unit No. 1), ALAB-279, 1 NRC 559 (1975). . . . .. .. . . . . . . . . . . . . . . . . . . .14,15
, Kleppa v. Sierra Club, 421 U.S. 390 (1976) . . . . . . . . . . . . . . . . . . . . 23 Minnesota v. NRC, . 602 F.2d 412 (D.C. Cir. 1979) . . . . . . . . . . . . . 20,21,23 NAACP v. Medical Center, Inc.,
584 F.2d 619 (3d Cir. 1978) . . . . . . . . . . . . . . . . 23 Northern Ind. Pub. Serv. Co., In re, (Bailly Generating Station, Nuclear 1), ALAB-619, 12 NRC 558 (1980) . . . . . . . . . . . . . . . . 29 Northern States Power Co., In re, (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, aff'd, CLI-73-12, 6 AEC 241 (1973), aff'd sub nom. BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974). . . . . . . . . . . . . . . . . . . . . . 16 Northern States Power Co., In re, (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41 (1978), aff'd in part and , remanded on other grounds sub nom. Minnesota v. NRC, 602 F.2d 412
*~
(D.C. Cir. 1979). ..... . . . . . . . . . . . .. . 27-28,34 Northern States Power Co., In re, (Tyrone Energy Park, Unit 1), ALAB-464, 7 NRC 372 (1978). . . . . . . . .. . . . . . . . 30 iv
I I
. Cases: Page ,. Pacific Gas & Elec. Co., In re, (Stanislaus Nuclear Project, Unit 1), ALAB-400, 5 NRC 1175 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Pennsylvania Power & Light Co., In re, (Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-6, 9 NRC 291 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . .34-35 Potomac Elec. Power Co., In re, (Douglass Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79 (1974) . . . . . . . . . . . . . . . . . . . . . . 31 Portland Gen. Elee. Co., In re, (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976). . . . . . . . . . . . . . . . . . . . . . . . . 11 Portland Gen. Elec. Co., In re, (Trojan Nuclear Plant), LBP-78-40, 8 NRC 717 (1978), aff'd, ALAB-524, 9 NRC 65 (1979) . . . . . . . . . . . . . . . . . . . . . .16,27 Portland Gen. Elec. Co. , In re (Trojan Nuclear Plant), ALAB-524, 9 NRC 65 (1979) . . . . . . . . . . . . . . . . . . . . . . 17 Portland Gen. Elec. Co., In re, (Trojan Nuclear Plant), ALAB-531, 9 NRC 263 (1979). . . . . . . . . . . . . . . . . . . . . . 34 Portland Gen. Elec. Co., In re (Trojan Nuclear Plant), ALAB-534, 9 NRC 287 (1979). . . . . . . . . . . . . . . . . . . . . . 18 Public Serv. Co. of Ind., In re, (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167 (1976). . . . . . . . . . . . . . . . . . . . . . 18 Public Serv. Co. of Ind. , Inc. , In re, (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179 (1978). . . . . . . . . . . . . . . . . . . . . . 30 Public Serv. Co. of Ind., Inc., In re, (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-493, 8 NRC 253 (1978). . . . . . . . . . . . . . . . . . . . . . 30 Public Serv. Co. of Ind., In re,
~ (Marble Hill Nuclear Generating Station, Units 1 and 2), CL1-80-10, 11 NRC 438 (1980) . . . . . . . . . . . . . . . . . . . . . 11
~
V
N Cases: Page
. Public Serv. Co. of N.H., In re,
~
(Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503 (1977), aff'd sub nom. New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir. 1978). . . . . . . . . . . . . .24,29 Public Serv. Co. of N.H., In re, (Seabrook Station, Units 1 and 2), ALAB-513, 8 NRC 694 (1978). . . . . . . . . . . . . 17 Public Serv. Elec. & Gas Co., In re, (Salem Nuclear Generating Station), ALAB-650, 19 NRC 43 Nuc. Reg. Rep. (CCH) 1 30,608 (1981) . . . . . . . . . . . . . . . . . . . . 34 Rochester Gas & Elec. Corp. , In re, (Sterling Power Project Nuclear Unit 1), ALAB-507, 8 NRC 551 (1978). . . . . . . . . . . . . . . . . 32 Southern Cal. Edison Co., In re (San Onofre Nuclear Generating Station, Units 2 and 3), memorandum and order (Jan. 27, 1978) . . . . . . . . . . . . . . . . . . . . . 15-16 Tennessee Valley Authority, In re, (Browns Ferry Nuclear Plant, Units 1, 2, and 3), LBP , NRC slip op. (Oct. 2, 1981) . . . . . . . . . . . 3,6 Tennessee Valley Authority, In re, (Phipps Bend Nuclear Plant, Units 1 . and 2), ALAB-506, 8 NRC 532 (1978). . . . . . . . . . . . . 8,29 Tennessee Valley Authority, In re, (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418 (1977)'. . . . . . . . . . . . 11 Union of Concerned Scientists v. AEC, 499 F.2d 1069 (D.C. Cir. 1974). . . . . . . . . . . . . . .18,20 United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973) . . . . . . . . . . . . . . . . . . . . 13 United States Energy Research & Dev. Admin., In re, (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67 (1976). . . . . . . . . . . . . . . . . 29 Vip 31 nia Elec. & Power Co. , In re, (No:th Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC
.54 (1979) . ........................ 11 . Virginia Elec. & Power Co., In re, (North Anna Nuclear Power Station, Units 1 and 2), LBP-79-9, 9 NRC 361 (1979). ........................
13 Winnebago Tribe of Neb. v. Ray, 621 F.2d 269 (8th Cir.), cert. denied, 449 U.S. 836 (1980) . . . . . . . . . . . . . 24 vi
Cases: Page k'isconsin Elec. Power Co. , In re, (Point Beach Nuclear Plant, Unit No. 2), ALAB-31, 4 AEC 689 (1971) . . . .. . . .. . . . . 18 Statutes: C Tennessee Valley Authority Act of 1933, 48 Stat. 58, as amended 16 U.S.C. $$ 831 ~ 76g Supp. III, 1979). . . . . . . 4 Atomic Energy Act f 1976, '175W 42 U.S.C. $ 223 (1969) . n 1.Go . . . . . . . . . . . . . . 10 National Environme icy Act of 1969, 42 U.S.C. $$ 4321 et seg. (1976). . . . . . . . . . .. . . 5 Regulations: 10 C.F.R. $ 2.714 (1981). . . . . . . . . .2,5,7,10,14,24,28,31,32 10 C.F.R. $ 2.758 (1981). . . . . . . . . . . . . . . . .".
. 30 10 C.F.R. $ 2.760a (1981) . . . . . . . . . . . . . . . . . . 17 -
Miscellaneous: 45 Fed. Reg. 54,511 (1980). . . . . . . . . . . . . . . . . . 5 . 45 Fed. Reg. 81,697 (1980). . . . . . . . . . . . . . . . . . 1 46 Fed. Reg. 46,032 (1981). . . . . . . . . . . . . . . . . . 3 Statement of Policy on Conduct of a Licensing Proceeding, CL1-81-8, 13 NRC 452 (1981) . . . . . . .. . . . . . . . . 35 , O vii
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )
) Docket Nos. 50-259 OLA TENNESSEE VALLEY AUTHORITY ) 50-260 OLA
) 50-296 OLA (Browns Ferry Nuclear Plant, ) (Low-Level Radioactive Units 1, 2, and 3) ) Waste Storage Facility)
TENNESSEE VALLEY AUTHORITY'S BRIEF IN OPPOSITION TO PETITIONERS' APPEAL OF THE LICENSING BOARD'S PREHEARING CONFERENCE MEMORANDUM AND ORDER RULING ON PETITIONS TO INTERVENE AND REQUESTS FOR HEARING PROCEDURAL HISTORY This proceeding involves the Tennessee Valley Authority's . (TVA) application to amend the Browns Ferry Nuclear Plant operating license for the sole purpose of obtaining permission to store onsite for up to five years low-level radioactive waste (LLRk') generated in the course of normal plant operation. In acknowledgement of the notice of an opportunity for hearing dated December 11, 1980 (45 Fed. Reg. 81,697), a number of persons filed identical petitions for leave to intervene. In its response filed January 27, 1981, TVA took the
, position that the petitions should be denied because none deconstrated )
l a sufficient injury to any cognizable interest to justify intervention j' as of right or in the discretion of the Nuclear Regulatory Commission
(Commission or NRC). The NRC staff concludeu in its January 28 initial reply that the netitioners had satisfied the interest require-ment of 10 C.F.R. $ 2.714 (1981). Subsequent to the Atomic Safety and Licensing Board's (Licensing Board or Board) order setting a prehearing conference, all petitioners through a single document amended the petitions and stated four issues which they sought to litigate. On April 3 TVA filed a response to the amended petitions opposing them because of a failure to raise valid contentions. The NRC staff's April 7. position was that three of the four contentions should not be admitted and that the remaining (contention 1) raised only a legal issue that the
. Board could resolve without a hearing.
At the April 10 prehearing conference, petitioners, through counsel, asked that the Board delay issuing any order concerning the
. adequacy of the petitions until such time as they filed an additional amendment (tr. at 82). Tre Board allowed petitioners 15 days to do this,-and specifically noted that in so doing the Board had not waived the requirement for submitting a justification for late filing (tr. at 91).
On April 27 petitioners filed an amendment adding five contentions but failed to address why the Board should accept the late-filed issues. TVA, in its response of May 8, requested that the Board reject these additional matters because they did not comply with 10 C.F.R. $ 2.714 and because they were late filed. The NRC staff on May 15 opposed the additional issues as untimely. Without 2
'i !
. I
, leave from the Board the petitioners on May 27 filed another untimely memorandum attempting to justify their late-filed contentions. The NRC staff subsequently submitted a June 4 reply on the merits of the new topics, finding them inadmissible and finding contention 1 no longer relevant.
, On October 2 the Board, as reconstituted (46 Fed. Reg. 46,032 (1981)), issued a prehearing conference memorandum and order denying the petitions to intervene and requests for hearing (In r- Tennes see Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2, and 3), LBP , NRC (slip op. Oct. 2, 1981)). Petitioners Noel M. Beck, et al..I have filed a notice of appeal. ISSUES PRESENTED ON APPEAL
- 1. Have the petitioners, each of whom lives 30 miles or more from the site of the proposed LLRW storage facility, adequately alleged facts to demonstrate standing to intervene in this proceeding?
- 2. Did the Licensing Board err in finding that the peti-tioners had failed to raise even one adequate contention, dismissing the petitions, and denying the requests for a hearing?
1 David R. Curott, Uvonna J. Curott, Nancy Muse, Hollis Fenn, Richard L. Freeman, Noel M. Beck, and Robert W. Beck of Florence, Alabama; Alice N. Colcock, Betty L. Martin, and John R. Martin of ; Sheffield, Alabama; and Thomas W. Paul, Richard W. Jobe, Marjorie L. Hall, Gregory R. Brough, Michael D. Pierson, David Ely, Debbie Havas, Rebecca Hudgins, and Tom Thornton of Huntsville, Alabama.
. 3
STATEMENT TVA owns and operates the three-unit Browns Ferry Nuclear Plant located in Limestone County, Alabama. Each unit is licensed for a thermal power level of 3,293 megawatts. Commercial operation of Units 1, 2, and 3 began on August 1, 1974, March 1, 1975, and March 1, 1977, respectively. Operation of Browns Ferry Nuclear Plant results in planned generation of LLRW. This waste consists of ion exchange and condensate demineralizer resins and miscellaneous trash such as polyethylene boots, rubber shoe covers, plastic hose, gloves, pine crateL, scrap iron, mops, and brooms. TVA must store or dispose of this waste in order to continue to operate the plant. Although a small amount of onsite storage , capacity is available at the plant, TVA presently ships most of its LLRW to the licensed LLRW disposal facility at Barnwell, South Carolina. Because space is limited at Barnwell, the facility operator restricts the volume of wastes it will accept from the various utilities and others shipping to Barnwell. The disposal space allocated to TVA for its LLRW is gradually decreasing, thus forcing TVA, like all others who ship to Barnwell, to seek alternative arrangements for managing its LLRW. The TVA Board of Directors has authorized the TVA staff to study and develop methods to manage LLRW, including onsite storage 2 TVA is a corporate agency and instrumentality of the United States established under the Ternessee Valley Authority Act of 1933, 48 Stat. 58, as amended, 16 U.S.C. $$ 831-831dd (1976; Supp. III, l 1979). . 1 4
)\
l i l and volume reduction. As part of this evaluation, TVA prepared environmental assessments (EAs) in accordance with NEPA that addressed both life-of-plant storage and volume reduction at three plants, including Browns Ferry. Those assessments concluded that insignificant environmental consequences would result from storage and volume reduction. Under TVA's NEPA procedures (45 Fed. Reg. 54,511 (1980)), an EA merely evaluates the environmental consequences prior to any decisionmaking and does not commit TVA to a particular action. On July 31, 1980 TVA submitted an application for life-of-plant storage of LLRW at Browns Ferry. On November 17 TVA modified the request to ask for approval to store LLRW for up to five years. As permitted under NRC regulations, TVA has constructed several concrete modules for this purpose and they stand ready for use today. In the meantime, the TVA Board has authorized the staff to begin preliminary design and investigative work that may eventually lead to procurement and installation of a volume reduction and solidification system (VRSS) at Browns Ferry as well as two other plants. It is only the five-year proposal that is before the NRC and subject to the notice in this proceeding. The Licensing Board's October 2, 1981 memorandum and order held that the petitioners had stated no contention which satisfied the requirements of 10 C.F.R. $ 2.714 and for that reason dismissed 3 National Environmental Policy Act of 1969, 42 U.S.C. $$ 4321 et seq. (1976). 5
the petitions and rejected the requests for hearing. Specifically,
- 1 the Board held that petitioners did not seriously question TVA's 1 five-year storage proposal (slip op. at 6). It found that the peti-tioners focused on what appeared to them to be TVA's longer term LLRW management plans (id.). The Board ruled that TVA's five-year proposal had immediate, independent utility and that this issue was not in i question (slip op. at 7). It also held that granting the five-year request would not prejudice future NRC action on later LLRW activities if proposed by TVA (slip op. at 7-8). The Board then applied Minnesota
- v. NRC, 602 F.2d 412 (D.C. Cir. 1979), in light of those two uncontested findings and held that NRC?s consideration of TVA's five-year storage request did not improperly segment an LLRW management plan (slip op at 10). Consequently, it decided that all petitioners' contentions, which were based on a theory of improper segmentation, must fail as outside the scope of the proceeding (id.).
The Board also investigated the adequacy of each contention. Aside from the clear failure of the petitioners to raise relevant matters, many contentions were found to be too vague to give adequate notice of what petitioners proposed to litigate or were judged to raise matters outside NRC's jurisdiction. The Board said contention 9 was the only one which addressed the application for five-year storage (slip op. at 16). It held that the contention was impermissibly vague and raised matters beyond NRC's jurisdiction (slip op, at 17). 4 The Board declined to rule on the question of standing. Although it found TVA's position opposing standing " interesting," the Board found it unnecessary to address (slip op. at 5). 6
1 i
SUMMARY
OF POSITION TVA fully supports the well-reasoned Licensing Board decision. The Board correctly held that an inquiry into TVA's LLRW management planning was improper. Its determinations that the storage facility would have independent utility and that NRC review of five-year storage at this time would not preclude effective NRC evaluation of later LLRW proposals are beyond reproach. Petitioners did not contest those issues below and have not discussed them in their brief to the Appeal Board. Given these circumstances, petitioners may not raise matters concerning long-term storage or a VRSS in this proceeding as they have tried to do in eight of their contentions. Moreover, even if NRC could properly inquire into these matters in the context of the licensing proceeding, none of the contentions meets the conditions of 10 C.F.R. $ 2.714 (clarity, precision, and specificity). Thus, the Appeal Board should affirm the Licensing Board's order. 4 Additionally, the Appeal Board can affirm the dismissal of the petitions on the basis of a lack of standing. The petitions to intervene clearly fail to meet the tests established for standing under section 188 of the Atomic Energy Act and 10 C.F.R. 5 2.714. The petitions lack any specific factual allegations to indicate how the license amendments would affect petitioners' interests. There should be no legal presumption that an amendment to the operating license of the limited nature here involved automatically confers standing on all persons.within 50 miles of the plant. 7
}
Petitioners' appeal brief does not address the standing issue- It merely divines three reasons to support intervention, none of which is persuasive. First, petitioners argue that because TVA it a federal agency, it must be treated more stringently than a private applicant. In In re Tennessee Valley Authority (Phipps Bend Nuclear Plant, Units 1 and 2), ALAB-506, 8 NRC 532 (1978), however, the Appeal Board considered that issue and its decision there serves as clear precedent for the NRC to treat TVA as any other private applicant. Second, petitioners argue that somewhere they have raised at least one " litigable contention." Their brief, however, fails to illuminate that one specific, relevant factual issue. The Licensing Board clearly recognized that, apart from the question of scope of the hearing, many of the contentions were also defective for lack of specificity (see also tr. at 76). Even if TVA had some overall plan, which it does not, this does not, as petitioners assert, automatically mean NEPA is " unsatisfied" (brief at 7). Petitioners must allege how volume reduction and long-term storage constitute major federal actions. Moreover, they cannot simply rest on an ultimate legal conclusion that TVA's planning requires NRC to do an EIS. They must indicate with precision and clarity in what way their interests would be affected and what specific aspects of a VRSS and long-term storage they seek to contest. 1 l Third, regarding TVA's planning for long-term storage or a VRSS, petitioners contend that the Licensing Board " erred by accrediting the bald allegations or assurances of counsel" (brief at 10). I 8 l
, The representations of TVA counsel that petitioners find offensive solely provided background information to the Board. It obviously could not glean information solely from the record on most of the issues raised by petitioners, since the matters far exceeded the scope of. TVA's application. More impoctantly, however, this background information was not essential to the ultimate decision the Board rade. Regardless of whether TVA has some waste management plan that may involve long-term (life-of-plant) storage or volume reduction of low-level wastes, five year storage has independent utility and petitioners have not attempted to contest that fact (slip op. at 7) or to address that issue in their brief. Moreover, even if the
. topics of long-term storage and volume reduction were relevant, petitioners have provided nothing specific to show how their interests might be affected by such activities (see tr. at 76). Based on these two factors, the petitioners' arguments regarding the need for a more thorough NEPA analysis een be dismissed (In re Duke Power Co. (Amend-ment to Materials License SNM-1773), ALAB-651, NRC , Nuc. Reg.
Rep. (CCH) S 30,613 (1981)). Because of the failure to state adequate, legally cognizable contentions and because petitioners lack standing in this proceeding, the Appeal Board should affirm the Licensing Board's decision to dismiss the petitions. 1 0 9 9
ARCUMENT I Petitioners Have No Standing To Intervene. The petitions do not meet the tests established for standing in section 188 of the Atomic Energy Act, 42 U.S.C. $ 2239 (1976), or section 2.714 of the Commission's Rules of Practice (10 C.F.R. 5 2.714). The Rules of Practice require that in order to establish standing, - the petitioners must show (1) the nature of the petitioners' right under the Atomic Energy Act to be made a party to the proceeding; (2) the nature and extent of the petitioners' property, financial, or other interest in the proceeding; and (3) the possible effect of any ~ order which may be entered in the proceeding on the petitioners' , interest (10 C.F.R. S 2.714(d)). The petitions here fail to demonstrate sufficient interest in the proceeding to justify intervention. Petitioners allege that they have an interest in the proceed-ing based generally on their status (1) as residents and property owners in close geographical proximity to the plant (about 30-35 miles, (slip op. at 2)); (2) as customers for power from several municipal or cooperative electrical systems, each of which purchases and obtains its electricity from TVA; (3) as users of water and air "which may be affected by the prcceeding"; and (4) as consumers of foodstuffs, both animal and vegetable, that might be " grown and raised in close proximity a to t he Browns Ferry Nuclear Plant." Petitioners generally assert that 5 At the prehearing conference their attorney stated that at times some of the petitioners visited areas nearer the plant (tr. at 38-39)
- 10
the granting of license amendments may increase health and safety risks to them and their descendants. The petitioners' general allegations of interest do not meet the standing test. The concept of standing, an injury in fact arguably within the zone of interest sought to be protected by the Atomic Energy Act (and NEPA), is well known and need not be discussed in detail. See In re Portland Gen. Elec. Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976); In re Public Serv. Co. of Ind. (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI-80-10, 11 NRC 438 (1980). Each petitioner's bare allegation of
" proximity" to the site is insufficient in this instance for standing.6 This operating license amendment presents a case of first impression with respect to applying the proximity test for standing to a relatively minor activity such as storage of LLRW. The Appeal Board, in other cases, has held that nearness to a nuclear plant site raises a rebuttable presumption that an interest will be affected (In re Virginia Elec. & Power Co. (North Anna Nuclear Power Station, Units I and 2), ALAB-522, 9 NRC 54 (1979); In re Houston Lighting &
5 (cont.) (i.e., a park 15 miles away, the town of Athens about 10 miles from the plant, and the Redstone Arsenal some 20 miles upstream of the plant). These nonspecific statements add nothing to peti-tioners' bases for standing. 6 The economic concern of a ratepayer that petitioners allege is
. not a legally sufficient interest (Pebble Springs, supra, at 613-14;" .
In re Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 (1977); In re Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239 (1980)). They have asserted no additional bases for standing other than proximity for questioning impacts to air, water, and agricultural products. 11
Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 1 9 NRC 377 (1979)). The application of that presumption to the issue
~
l of standing, however, has been litigated only in the context of the proposed construction and operation of a nuclear plant or spent fuel storage capacity expansions. Those activities involve the potential, albeit extremely unlikely, accidental release of millions of curies and resulting harm extending out many miles from a plant. Here, TVA is proposing to store up to five years' production of trash and resins having a maximum level of radioactivity several orders of 4 magnitude less than that contained in the reactor cores or spent fuel pools. A significant effect from releases from an LLRW storage facility (accidental or otherwise) cannot be technically assumed to occur out to the same distance as that which would result from an occurrence involving the plant itself. A licensing board should not legally presume an effect to petitioners' interest absent specific allegations detailing how those effects could occur in this instance. For that reason, petitioners should not be permitted simply to rely on geographic proximity of 30 miles to satisfy the standing requirements. To show standing, petitioners must specifically allege the mechanism of release and how they.could be injured by releases from the storage facility. There is nothing in the petitions or in the transcript which indicates with the required specificity how a health or property injury to even one of the petitioners could occur from five-year storage, long-term storage, or volume reduction. A petitioner must " allege that he has been or will in fact be perceptibly harmed - 12
I by the challenged agency action, not that he can imagine circumstances in which he could be affected . : ." (United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 688-89 (1973)). Nonspecific allegations that water, air, and foodstuffs could be contaminated are not enough. This very point was addressed in N rth Anna: It is not enough simply to call out neighboring waters, air, and agricultural products and to allege that these elements of the environment might or will be adversely affected to some undefined extent in some undetermined manner by the expansion of the [ waste storage, in that case spent fuel] capacity. How the expansion of the spent fuel capacity might or will bring about environmental contamination, and the extent of such contamination, deserve to be described with particularity. General allegations of cause and effect relationships without meaningful supporting allegations of specific facts establishing a reasonable nexus between cause on the one hand and effect on the other are insufficient to support a petition for leave to intervene under . the Commission's regulation [In re Virginia Elec. & Power Co. (North Anna Nuclear Power Station, Units 1 and 2), LBP-79-9, 9 NRC 361, 363-64 (1979); emphasis in the original]. The Appeal Board has stated that to establish standing, petitioners must provide an allegation which explicitly identifies the nature of the invasion of the personal interest which might flow from the propcsed licensing action (Allens Creek, supra, 9 NRC at 393). Thus, the p(?itioners had a clear obligation to allege in a timely manner a mechanism by which air, water, and agricultural contamination could occur and how it could reasonably be expected to affect them. The failure of petitioners to allege facts which would meet the test for standing is dispositive of their petitions and this appeal. Without standing, their petitions must be dismissed. 13
i l
. II f
Petitioners Have Failed Tc Set Forth Even One Adequate Contention. A. General considerations Petitioners are not concerned about TVA's five-year storage proposal (slip op. at 6). As stated by the Licensing Board, the crux of petitioners' case is that NRC should review TVA's plans for long-term storage and a VRSS. This, as the Board found, is insufficient in light of 10 C.F.R. $ 2.714 to support intervention. The Board expressly held that these contentions addressed matters outside the scope of the proceeding and that many in any event were impermissibly vague. TVA agrees. (1) Specificity Is Required. A number of appeal board and licensing board decisions have discussed the principles which should be applied in determining the adequacy of a contention. While a determination about the sufficiency of a contention must always be made on a case-by-case basis, the foremost guiding factor is that [t]he applicant is entitled to a fair chance to defend. It is therefore entitled to be told at the outset, with clarity and precision, what arguments are being advanced and what relief is being asked . . . . So is the Board below. It ; should not be necessary to speculate about what a l pleading is supposed to mean [In re Kansas Gas &
, Elec. Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-279,1 NRC 559, 576 (1975); emphasis l added].
l 14
Merely contending that a proposal does not comply with the law or Commission regulations is insufficient (id.; accord, In re Allied-Gen. Nuclear Servs. (Barnwell Fuel Receiving & Storage Station), LBP-76-24, 3 NRC 725, 728-29 (1976) (The Board should reject a conten-tion that only alleges that the environmental statement is inadequate . and fails to detail the defects)). None of the contentions is clear or precise. Even if petitioners are correct in asserting that NRC must consider long-term storage or VRSS operation, the contentions fail to indicate clearly and precisely how their interests would be affected and what aspects of VRSS operation or long-term storage they contest. (2) Contentions Must Raise Contested , Factual Issues. Petitioners seek to raise an identical legal issue in each of contentions 1 through 8, but without alleging the evidence of any specific, underlying, and disputed factual issue. This they cannot do. Their contentions must raise specific, contested factual issues. Where a matter presented is strictly a legal issue, the contention will be denied (In re Armed Forces Radiobiology Research Inst. (TRIGA-Type Research Reactor), special prehearing conference memorandum and order (slip op. Aug. 31, 1981, at 11). Similarly, a licensing board in the San Onofre proceeding in an unpablished order held that it would not allow a contention which does not raise a specific factual issue (In re Southern Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), memorandum and order 15
(slip op. Jan. 27, 1978, at 4); accord, In re Duquesne* Light Co. (Beaver Valley Power Station, Unit No. 1), LBP-78-16, 7 NRC 811, 813 (1978) (operating license amendment), aff'd, ALAB-484, 7 NRC 984 (1978); In re Florida Power & Light Co. (Turkey Point Nuclear Generating.
,. . a s .L / J - k '_
Units 3 and 4), LBP-81-14, la NRC 677, 691 (1981) (on appeal)). In Beaver Valley, supra, the Licensing Board held that the NRC's conclusion that an action would not violate NEPA (if no EIS were prepared), standing alone was not an issue which could be litigated and "[t]he Board rejected this as a contention because it appeared that it was not a factual contention . . ." (7 NRC at 813; see also In re Portland Gen. Elec. Co. (Trojan Nuclear Plant), LBP-78-40, 8 NRC 717, 744 (1978), aff'd, ALAB-524, 9 NRC 65 (1979); In re Northern States Power
. Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 191-92, aff'd, CLI-73-12, 6 AEC 241 (1973), aff'd sub nom.
BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974)). Strict application of NRC's requirement for specific factual contentions is especially important in a case such as the present where, absent intervention, a hearing would not otherwise be held (In re Consolidated Edison Co. of N.Y. (Indian Point Nuclear Generating Unit 3), CLI-74-28, 8 AEC 7 (1974)). In [this] proceeding, unlike a construction permit proceeding, a hearing is not mandatory and, if held, is restricted to those matters which have been put into controversy by the parties and are determined by the Licensing Board to be issues in the proceeding. . . . There is, accordingly, especially strong reason in [this] proceeding why, before granting an intervention petition and thus triggering a hearing, a licensing 16
l 1 board should take utmost care to satisfy itself fully that there is at least one contention advanced in the petition which, on its face, raises an issue clearly open to adjudication in the proceeding [In re Gulf States Utils. Co. (River Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222, 226 n.10 (1974)]. Contentions 1 through 8 attempt only to raise general legal issues. Although, as discussed below, the petitioners' position with respect to each of them is incorrect, they chould be rejected as inadequate on this ground alone. Even regarding the volume reduction and long-term storage activities they attempt to litigate, petitioners would have to allege with clarity and precision what specific factual aspect of these activities they wish to contest. (3) The Notice Limits the Scope of , the Proceeding. Contentions 1 through 8 inappropriately seek to expand this proceeding beyond the scope of the notice. The only matter before the Commission is TVA's application for five-year LLRW storage. Petitioners would have other matters reviewed, such as permanent storage and volume reduction. Commission adjudicatory tribunals are precluded from entertaining issues which do not come within the reach of matters placed before them for decision (In re Public Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), ALAB-513, 8 NRC 694 (1978); In re Portland Gen. Elec. Co. (Trojan Nuclear Plant), ALAB-524, 9 NRC 65, 70 n.9 (1979)). 7 Except where the Board sua sponte reviews serious safety issues pursuant to 10 C.F.R. $ 2.760a (1981). 17
1 I l The scope of the Board's inquiry in this proceeding is limited to that set out in the notice (In re Public Serv. Co. of Ind. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976); accord, In re Portland Gen. Elec. Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289 (1979); In re Common-wealth Edison Co. (Carroll County Site), ALAB-601, 12 NRC 18, 24 (1980)). (4) This Proceeding Does Not Involve a De Novo Review of All Possibly Relevant Matters. Contentions I through 8, if accepted, would turn this narrow operating license amendment into a de novo hearing on all of TVA's LLRW planning. While this is clearly petitioners' goal, it is just as clearly impermissible. In a proceeding for an amendment to , an operating license, as in a proceeding for an operating license, the hearing may not encompass a de novo review of the entire subject matter of the license application or all possibly relevant matters. NRC regulations limit the proceeding to specific contentions (see In re Wisconsin Elec. Power Co. (Point Beach Nuclear Plant, Unit No. 2), ALAB-31, 4 AEC 689, 690 (1971); accord, In re Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-83, 5 AEC 354, 358 (1972), aff'd sub nom. Union of Concerned Scientists v. AEC, 499 F.2d 1069 (D.C. Cir. 1974)). [ Petitioner) does not challenge the guidance given to this Licensing Board in the hearing notices or the Licensing Board's compliance with that guidance. Instead, [ petitioner) asserts , 18
l that the Licensing Board must conduct what amounts to a de novo review of all matters (i.e., radio-logical safety as well as environmental) relating to the issuance of the operating license, whether or not in controversy. As we have previously held with respect to radiological safety matters, a proceeding of this type is not intended to encompass a de novo review but is " intended to resolve specific problems with respect to the plant in question." Absent a petition for inter-vention raising such problems, no public hearing need be held [5 AEC at 358; footnote omitted]. The purpose of contentions in the hearing process is to narrow the focus of the proceeding. Accordingly, a licensing board must admit only adequately stated contentions. The Board is under no general mandate to explore and resolve any potentially relevant
, matter if it has not been properly raised by the intervening parties (In re Consolidated Edison Co. of N.Y. (Indian Point Nuclear Generating , Unit 3), CL1-74-28, 8 AEC 7, 9 (1974); accord, In re Duquesne Light Co.
(Beaver Valley Power Station, Unit No. 1), LBP-78-16, 7 NRC 811, 814 (1978) (operating license amendment), aff'd, ALAB-484, 7 NRC 984 (1978)). Petitioners are under an obligation to detail with precision and clarity what they seek to litigate. This they have not d,ne, even assuming their topics are relevant. Consequently, because the Board could find no contentions which complied with the Commission rules of procedure, under the terms of the notice, it correctly j denied the petitions for leave to intervene and entered an appropriate I order rejecting the requests for a hearing (In re Pacific Gas & Elee. Co. (Stanislaus Nuclear Project, Unit 1), ALAB-400, 5 NRC 1175 (1977)). l 19
1 1 Neither the Licensing Board nor the Appeal Board is under an obligation to inquire further (Indian Point, CLI-74-28, supra; Union of Concerned Scientists, supra). (5) No EIS Is Needed for TVA's Five-Year Storage Proposal Because of Its
? Potential Long-term Planning Options.
Even if the petitioners were correct, which they are not, in assuming that TVA has already decided upon some comprehensive low-4 level waste program for Browns Ferry, the five-year storage facility can be licensed without preparation of an EIS addressing long-term stt-age or a VRSS. Petitioners in their first eight contentions focus on the abstract legal issue of " segmentation" and the question of whether an EIS must be prepared on all possible management options for Browns Ferry LLRW. However, the issue of segmentation with~ respect to spent fuel has already been decided, a decision which, a fortiori, applies with equal force here. In Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979), the court let stand an Appeal Board's denial of an intervenor's attempt to delay spent fuel storage capacity expansion (analogous to what petitioners would have done here). The intervenor's 8 Spent fuel capacity expansion, a seemingly more compelling situation, has been permitted without an EIS in every case reaching , final decision (see In re Consumers Power Co. (Big Rock Point Nuclear ) Plant), ALAB-636, 13 NRC 312 (1981); In re Commonwealth Edison Co. ' (Quad Cities Station, Units 1 and 2), order (Oct. 27, 1981)). It would be incongruous for TVA's request to expand LLRW storage to be , subject to the preparation of an EIS when its spent fuel capacity expansion request was granted at Browns Ferry as well as numerous other plants without one. l 20 l l
position was based on the fact that the utility eventually would have to obtain an additional license amendment for long-tere stcrage. [Intervenor] contends that NRC violated NEPA by improperly " segmenting" its consideration of the environmental impact of expansion of onsite storage capacity at Prairie Island. The theory is that because the present expansion of the spent fuel pool will accommodate the spent fuel assemblies produced at Prairie Island only until 1982, a request for further expansion is inevitable. Citing Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976), Minnesota argues that the NRC was required to take into account the environmental impact of this "unavoid-able consequence" of the current expansion. We find this argument without substance. Minnesota
.has not pointed to any consequence of future expansion that could not be adequately considered
, at the time of any requests for further expan-sion. . .. The Staff specifically found that the licensing action here would not foreclose
- . alternatives available with respect to other licensing actions designed to ameliorate e possible shortage of spent fuel capacity (noting that "taking this action would not necessarily commit the NRC to repeat this action or a related action")
and that addressing the environmental impact associated with the proposed licensing action would not overlook any cumulative environmental impacts [ Minnesota v. NRC, supra, at 416 n.5]. As the Licensing Board found, petitioners do not contest the independent utility of five-year storage (slip op. at 7). They have alleged no consequence from long-term storage or a VRSS that cannot be adequately considered at the time, if ever, that TVA should make a licensing request including those matters. Thus, the independ-ent need for and utility' of TVA's proposal allows this action to 9 From a logical standpoint five-year storage is esse'tially n an i insurance policy which allows continued plant operations while ' regionally acceptable disposal plans are developed. If long-term 4 21
i l proceed without preparation of an EIS by NRC (see In re Duke Power Co. (Amendment to Materials License SNM-1773), ALAB-651, NRC , Nuc. Reg. Rep. (CCH) S 30,613 (1981)). Duke Power does not, as petitioners suggest, require the Board to delve into TVA's planning process, as long as the independent utility of the five-year storage proposal is not disputed (and it is not) and the NRC staff is not foreclosed from evaluating relevant aspects of long-term planning when they arise in future license amendments (id. at 29,933). In essence, petitioners have conceded (brief at 5) that the first segment, of an overall management plan for wastes can be considered independently by the NRC under the proper circumstances. They assert, however, that this is not true where an , , applicant is a federal agency, relying solely on dicta in Duke Power that said a NEPA analysis of a full plan would have to be made if a 9 (cont.) storage or volume reduction is eventually deemed a
-desirable component of some future plan, the NRC staff must and still can evaluate those options at the time TVA requests a license amend-ment. No one contests that fact. The design of the storage modules is such that they can be built as needed and storage can be halted at any time as circumstances warrant (tr. at 49-50). This fact is also apparent from the licensing documents and is not contested. .
The LLRW storage modules which TVA proposes to use have independ-ent utility, and TVA would build them regardless of whether the wastes would stay onsite or would be transferred to a disposal facility prior to the expiration of the requested five-year authorization. They ensure that plant operations can continue while ultimate disposal options are developed. TVA may decide to stop using these facilities during or at the end of the five-year period. On the other hand, TVA may request longer term storage. Regardless of what TVA may'in the future propose, the NRC staff can consider any environmental conse-quences of longer use at the time proposed, and proceeding with onsite storage for up to five years forecloses no future alteration. Similarly, evaluation of VRSS effects can adequately occur in the context of any future license amendment application. 22
l
, federal agency was responsible for that planning. They are wrong for two reasons.
First, as Kleppe v. Sierra Club, 427 U.S. 390 (1976), and Minnesota v. NRC, supra, indicate, a NEPA review of an individual federal project distinct from an overall program is permissible if the proposal has independent utility and the unavoidable consequences flowing from it are analyzed. Again, petitioners have not contested the Licensing Board's conclusions in this regard (slip op. at 7). Second, if petitioners' argument were correct, TVA would be treated more stringently by NRC than a private applicant. The Appeal Board has already decided contrary to petitioners' position in Phipps Bend. It held that NRC's NEPA responsibilities were the same irrespective of TVA's position as a federal agency and what independent NEPA obligations TVA might have. Thus, under Phipps Bend, neither TVA's nor NRC's NEPA obligations are diminished or increased because the other federal agency is involved. Here NRC need review only TVA's five-year storage proposal and the unavoidable consequences that flow from it. To have it look beyond the proposal into TVA's planning (without showing that these plans are unavoidable or that TVA is asking them to be licensed) is not required. As the Commission has 10 The lit. of cases which discusses federal involvement in private l actions is relevant here (see, e.g., Atlanta Coalition on the Transp. l Crisis, Inc. v. Atlanta Regional Comm'n, 599 F.2d 1333 (5th Cir. - 1979); Bradley v. United States Dep't of Housing & Urban Dev., 658 F.2d 290, 293 (5th Cir. 1981)). There must be " control over or responsibility" for a plan in order to make it a federal action requiring a NEPA evalua' tion by NRC. This does not change because TVA is a regulated federal agency. NRC will have a demonstrable " Federal
' responsibility' for the action" only when and if a licensing proposal comes before it (NAACP v. Medical Center, Inc., 584 F.2d 619, 634 23 l l
1 l 1
. 1
^ said in Seatrook, NRC's NEPA analysis of a licensing activity is more limited than it would be if the activity were NRC's own project (In re Public Serv.' Co. of N.H. (Seabrook Station, Units 1 and 2), CL1-77-8, 5 NRL 503, 541-42 (1977), aff'd sub nom. New England Coali-tion on Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir. 1978). It must focus on the applicant's proposal and the environmental issues which could be affected by the license conditions, not "on some broader but ill-defined concept extrapolated from that proposal" (id. at 542). Consequently, petitioners have raised nothing in contentions 1 through 8 which the NRC need new review and which would support intervention. . B. No contention complies with the requirements of 10 C.F.R. 9 2.714 (1981). The Commission through section 2.714 requires that conten-tions be specific, precise, and clear and raise factual issues within the scope of the proceeding. Petitioners have not met these simple preconditions. The original four contentions can be summarized as follows: 10 (cont.) (3d Cir. 1978)). NRC's approval of five-year storage does not " enable" TVA to store for a longer period or operate a VRSS, and therefore does not require NRC to do a NEPA evaluation on those
. items (id. at 632; accord, Winnebago Tribe of Neb. v. Ray, 621 F.2d 269, 272 (8th Cir.), cert. der.ied, 449 U.S. 836 (1980)). TVA, the
, only federal. agency having responsibility for the planning at this time, has done a NEPA evaluation of it. Indeed, even if it were TVA's responsibility to do an'EIS on its long-term planning, that issue
, cannot be litigated here (see pp. 29-30 infra).
24
. 1. Petitioners allege TVA has undertaken a major program at Browns Ferry, including life-of plant storage and volume reduction by incineration. NRC review and approval of only a five-year storage proposal at this point would be an incremental review impermissible under NEPA.
- 2. Again assuming the program for life-of plant storage and volume reduction, TVA has not submitted sufficient information to NRC to allow NRC to conduct an environ-mental review of the full program.
- 3. NRC would violate NEPA if it licensed life-of plant storage and volume reduction at Browns Ferry without
, first preparing an EIS.
- 4. This contention is the same as number 2 except the alleged insufficient information involves health and safety rather than environmental matters.
Obviously, if petitioners' assumption that TVA in this application is proposing and NRC is reviewing life-of plant storage and volume reduction is incorrect, which it is, these four contentions are fundameatally flawed. The Licensing Board correctly rejected them. This deficiency carries through to petitioners' final amendment to their contentions. Contentions 5 and 6 merely restate . and expand original contentions I and 3 and again incorrectly assume that life-of-plant storage and a VRSS are part of this proceeding. Contention 7 makes a strictly legal argument analogous to contention 3 25
I 1 l I l i I that cannot be admitted as a contention. Contention 8 merely contains additional handwaving aimed at convincing the Licensing Board that TVA is actually proceeding on some broad program that NRC must evaluate in this proceeding. It does not contain a single recognizable factual issue but instead simply argues that TVA is trying to avoid scrutiny of its actual plan. Contention 9, the only item which even relates to TVA's proposed license amendment, must fail if for no other reason than because it is impermissibly vague. Thus, all the contentions were correctly rejected. (1) Contentions 1, 2, and 3 Are Inadequate. Contention I states that the Board should deny the applica-
, tion for an amendment because it violates NEPA. Contention 2 alleges that TVA has supplied insufficient information on which the Commission can base its environmental assessment of the proposal. Contention 3 states that an environmental impact statement is necessary prior to implementation of TVA's "long term" plans. Petitioners also request that the NRC suspend consideration of TVA's amendment pending an application for permanent storage and volume reduction.
Contentions 1, 2, and 3 raise matters which may not be litigated in this proceeding. First, statements to the effect that TVA's application violates NEPA or forms an inadequate basis on which
, to ma e environmental judgments raise legal, not factual, arguments.
They contest no facts but rather involve only the ultimate conclusions of law that the Commission must make. The Licensing Board could have rejected those allegations solely on that basis (see, e.g., In re 26
Duquesne Light Co. (Beaver Valley Power Station, Unit No. 1), LBP-78-16, 7 NRC 811, 813 (NRC's conclusion that an action will not violate NEPA standing alone may not be litigated); see also in re Portland Gen. Elec. Co. (Trojan Nuclear Plant), LBP-78-40, 8 NRC 717, 744 (1978), aff'd, ALAB-524, 9 NRC 65 (1979)). l Even if petitioners' allegations were construed as an attempt to contest factual issues, they are too generalized and are set forth without any supporting bases. Thus, they must b'e rejected (see, e.g., in re Allied-Gen. Nuclear Servs. (Barnwell Fuel Receiving
& Storage Facility), LBP-76-24, 3 NRC 725, 728-29 (1976) (failure to detail how the environmental statement is defective is appropriate grounds for rejecting a contention)). Petitioners' brief does not
\
, adequately address specificity.regarding contentions I and 3 (brief i at 7) and ignores contention 2 altogether.
Second, to the extent contentions 1, 2, and 3 raise any issue about TVA's long-term storage options for LLRW or a VRSS, these matters, as discussed above, are not properly the subject of this proceeding. The Board agreed (slip op. at 10-12). Approval of five-year storage does not enable TVA to store for a longer period or operate a VRSS. As appropriate, issues associated with those matters may be raised in a separate proceeding. Not until then will NRC have some control or responsibility over those measures. Simply put, l volume reduction and long-term disposal are not " unavoidable consequences" from licensing five-year storage (In re Northern States Power Co.
~
(Prairie Island Nuclear, Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 48 (1978), aff'd in part and remanded on other grounds sub nom. { 27
- _ - _ _ - _ _ _ _ _ _ _ _ _ _ _ )
the notice, are clearly irrelevant. If contention 5 attempts to raise any factual issue at all, as petitioners contend (brief at 7-8), it must fail because it lacks requisite specificity. Thus, the Licensing Board correctly rejected these two contentions on the same basis that it dismissed contention 1 (slip op. at 13-14). In addition, contention 5 is irrelevant to any issue properly before the NRC in that it would have the Commission review a potential TVA administrative decision, not an NRC proposed action. The Licensing Board agreed (slip op. at 13-14). TVA's evaluation of environmental impacts pursuant to NEPA and the resulting decisions of the TVA Board of Directors are independent from any NRC decisions, and may not be litigated in NRC proceedings (cf. In re Tennessee Valley Authority (Phipps Bend Nuclear Plant, Units 1 and 2), ALAB-506, 8 NRC 533 (1978)). The Commission does not review and approve the environ-mental decisions of other federal agencies (see In re United States Energy Research & Dev. Admin. (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67 (1976); In re Public Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503 (1977)). Under the provisions of the Administrative Procedure Act, TVA's compliance with NEPA can only be challenged in a United States district court. It is beyond the authority of and totally inappropriate for an NRC licensing board to entertain a collateral attack on the validity of the EA
, 11 In determining whether to entertain an issue, the Board must respect the terms of the notice (In re Northern Ind. Pub. Serv. Co.
(Bailly Generating Station,. Nuclear 1), ALAB-619, 12 NRC 558, 565 (1980)). 29 l l
, prepared by TVA (In_re Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73, 85 (1979); cf. In re Public Serv.
Co. of Ind., Inc. (Marble Hill Nuclear Generating Station, Units I and 2), ALAB-459, 7 NRC 179 (1978) (NRC has no authority to decide a matter resting in the jurisdiction of state regulatory agencies); accord, In're Northern States Power Co. (Tyrone Energy Park, Unit 1), ALAB-464, 7 NRC 372 (1978)). The Board below was therefore plainly correct in refusing to hear witnesses or allow discovery for the purposes of reviewing REA's decision to guarantee a construction loan for Wabash Valley [for a portion of its 17-percent interest in facility]. The matter was not an issue open for consideration by a board conducting a construction
. permit proceeding under the Atomic Energy Act.
If relief is warranted from the REA's decision to guarantee the loan in question, it must be sought elsewhere [In re Public Serv. Co. of Ind., Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-493, 8 NRC 253, 267-68 (1978)]. Similarly, petitioners inappropriately attempt by contention 6 to question the substance of TVA's NEPA analysis. Also, contention 6 lacks requisite precision and clarity. The contention appears to be no more than a restatement of contention 1, and contention 1 raises no litigable matter. The Licensing Board correctly rejected contention 6 on this basis (slip op. at 14). Petitioners' brief did not discuss the i adequacy of this contention. l Contention 6 contains additional defects. In particular,
\
contention 6(a) appears to challenge release levels set in NRC regula- , , tions designed to protect health and safety by alleging VRSS releases will cause cancer. This is an impermissible contention under the provisions of 10 C.F.R. $ 2.758 (1981).(see, e.g., In re Commonwealth 30
? Edison Co. (Byron Nuclear Power Station, Units 1 and 2), LBP-80-30, ! 12 NRC 683 (1980); In re Potomac Elec. Power Co. (Douglass Point i Nuclear Generating Station, Units 1 and 2), ALAB . ' ' AEC 79, 88-89 l (1974)). Similarly, contention 6(e) must be rejected. It does not disclose in the first instance how the value as a precedent, if any, of a Browns Ferry decision would affect whether the Browns Ferry , 1 proposal is or is not a major federal action. To the extent 6(e) suggests that the NRC will not follow its regulations in licensing other facilities at other plants based on a Browns Ferry " precedent,"
, the contention is both inappropriate and irrelevent. Contention 6(g) is also irrelevant in that it does not disclose how construction s
scheduling could affect whether a proposal is a major federal action.
, Contentions 6(b), 6(c), 6(d), and 6(f), even if construed as an attempt to raise factual matters, are so wholly unspecific that they fail to comply with section 2.714. -
(4) Contention 7 Is Inadequate. Contention 7 alleges that NRC should process TVA's applica-tion under 10 C.F.R. pt. 30 rather than part 50. That is a purely legal issue. It contests no facts nor gives a basis for the legal assertion. Even if the contention contained a legitimate factual issue, it would still be unacceptable. It essentially restates contention 3, although based on an inconsistent legal theory, because it seeks to have an EIS prepared. Like contention 3, it should be rejected as irrelevant'and nonspecific. The Board agreed with TVA's 31
I
. . position by dismissing this contention on the same basis as conten-tion 1 (slip op. at 15). Petitioners' brief ignores this contention.
(5) Contention 8 Fails To Conform to Section-2.714. Contention 8 is an odd mir.ture of many prior contention,s and suffers from the same problems. To the degree this contention would require the Board to evaluate an irrelevant matter, long-term storage, it simply restates contention 1. The Board properly rejected it on this basis (slip op at 16). Petitioners' brief does not address the adequacy of this contention. 6 Contention 8(b), like contention 7, presents a noncognizable legal issue concerning licensing under part 30. Parts 8(a) and 8(c) seek to have this proceeding terminated , or at a minimum delayed until TVA reevaluates its EA. Assuming arguendo that TVA is reevaluating the Browns Ferry EA, which it is not, petitioners cannot litigate TVA's determinations with respect to its NEPA obligations here. Contention 8(a) also argues that TVA should not be permitted under any circumstance to apply for a license amendment. This amounts to a petition for an injunction against that which Commission regula-tions otherwise permit. Such relief is impermissible (In_re Rochester , 1 Gas & Elec. Corp. (Sterling Power Project Nuclear Unit No. 1), ALAB-507, l 1 8 NRC 551 (1978)). l e 4 a 32 l 1
)
(6) Contention 9 Is Inadequate. Contention 9, like others in the proposed amendments, draws into question the adequacy of TVA's analyses in its EA. NRC's, not TVA's, evaluations of environmental impacts are relevant in this proceeding. TVA's EA for Browns Ferry is an internal TVA document, not a required NRC licensing document. The adequacy of the EA is not reviewable here. The Licensing Board agreco with TVA and properly ' rejected the contention to the extent contention 9 raised irrelevant matters (slip op. at 17). Moreover, this contention cannot be maintained because of its lack of clarity and precision. The Licensing Board concurred 6 (slip op. at 17). Petitioners' brief does not discuss this aspect of contention 9. In a recent decision, a licensing board considered the , following contention: The Applicants have not adequately figured the costs and impacts of storage or disposal of spent fuel and other radioactive wastes, for the term of the operating licenses, in the cost / benefit analysis [In re Arizona Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3, Operating License Proceeding), slip. op. April 16, 1981, at 7}. The licensing board found: This contention is too vague to bc admissible. It fails to meet the specificity :nd bases require-ment of 10 C.F.R. $ 2.714. Principally, it is not clear what issue the Intervenor is asking the . Board to accept for litigation. Moreover, it is not clear what " impacts" are referred to [id.). Similarly, contention 9 is vague. It is unclear what costs are referred to and what their effect on an NRC staff evaluation would I l 33 l
1
. be. Petitioners simply furnish no factual orientation from which it can be determined how they would have the Licensing Board evaluate decommissioning costs in its decisionmaking.
Contention 9 also raises the issue of the costs of ultimate waste disposal in the context of an operating license amendment. LLRW is generated at the plant, the operation of which is not at issue in this proceeding. There are certain costs associated with this waste which cust be incurred in its ultimate disposal whether'or not TVA stores LLRV before disposal. In short, petitioners have tried to raise the issue of operating costs and that cannot be litigated here. . L In this connection, it should be noted that the Prairie Island units were licensed for operation on the basis that they would generate radioactive wastes in a certain amount over the full term oi their licenses. The amendment in question does not alter the situation; i.e., the proposed increase in the storage capacity of the spent fuel pool would not occasion the generation of more wastes than had been previously projected [In re Northern States Power Co. (Prairie Island Nuclear Generating Plants, Unit 1 and 2), ALAB-455, 7 NRC 41, 46-47 n.4 (1978), aff'd in pertinent part and remanded on other grounds sub nom. Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979)]. Accord, In re Portland Gen. Elec. Co. (Trojan Nuclear Plant), ALAB-531, 9 NRC 263 (1979) (spent fuel pool capacity expansion); In re Consumers Power Co. (Big Rock Point Nuclear Plant), ALAB-636,13 NRC 312 (1981); In re Public Serv. Elec. & Gas Co. (Salem Nuclear Generating' Station),
, ALAB-650, IN NRC N 2) , Nuc. Reg. Rep. (CCH) S 30,608 (1981).
. Moreover,petitionersmIaynot raise matters related to the ultimate disposal of wastes in any event (see, e.g., In re Pennsylvania Power 34
e
& Light Co. (Susq'iehanna Steam Electric Station, Units 1 and 2),
LBP-79-6, 9 NRC 291 (1979) (the issue of offsite transportation of wastes is outside the scope of an operating license proceeding as is the ultimate disposition of these wastes). CONCLUSION Petitioners have not adequately alleged facts to demonstrate starding to intervene and on that basis the petitions can be rejected. Moreover, the Licensing Board correctly ruled that the petitioners had failed to raise even one adequate contention. The Board was w fully justified in dismissing the petitions and denying the requests
. for a hearing.
Neither the Licensing nor the Appeal Eoard has an obligation to allow intervention when, given repeated opportunity, these peti-tioners have failed to provide a sufficient basis for intervention in a timely manner. The Commission has formulated a statement of policy directing licensing boards to expedite licensing proceedings (Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981)). Implicit in this statement is the need to comply with NRC's procedural regulations. Explicit in this policy is the ' 1 requirement only to have hearings on issues of material fact (id. s at 457). Given their inadequacy, denial of these petitions would be consistent with that policy. Finally, denial of the petitions to - intervene will not preclude any person from intervening in any later s 35
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l s a g proceeding that might consider long-term storage or volume reduction if that person can demonstrate an interest which would be affected. For the foregoing reasons TVA respectf.-11y requests that the Licensing Board's order dismissing the petitions be affirmed. Respectfully submitted, Herbert S. Sanger, Jr. General Counsel - Tennessee Valley Authority Knoxville, Tennessee Lewis E. Wallace 3 Deputy General Counsel James F. Burger W. Walter LaRoche i Attorneys for l Tennessee Valley Authority ' Knoxville, Tennessee November 23, 1981 j 9, e 9
1 i ( 0 e O A P P _E _N .D _I _X S e 4 9 4 ? I
/. s.-
,s
( UNITED STATES OF AMERICA ' NUCLEAR REGULATORY COMMISSION T. Before the Atomic Safety and Licensing Board s In the Matter of ) 'sc-__ -
)
SOUTHERN CALIFORNIA EDISON ) COMPANY, ET~ -- AL. ) Docket Nos. 50-361 OL 50-362 OL (San Onofre Nuclear Generating Station, Units 2 and 3) MEMORANDUM AND ORDER This Memorandus and Order pertains to the contentions of Intervencrs Friends of the Earth, Mr. and Mrs. August Carstens , Mr. and Mrs. Lloyd von Haden, Mr. Donald May, and Mrs. Denis Davey (F0E, et al.), and Intervenor Groups United Against ( Radiation Danger (GUARD). It also deals with the question of consolidation of certain parties and a discovery time table. CONTENTIONS OF F0E, ET AL. By our Memorandum and Order of October 26, 1977, the Licensing Board Established to Rule on Petitions for Inter-vention (hereinafter referred to " Petition Board") found that F0E, et al. , had a requisite interest in the environmental and health and safety aspects of the San Onofre facility.
, The Petition Board also held that of F0E, et al. 's eleven contentions, at least Contention 4 was set forth with sufficient particularity and basis so as to comply with 10 CFR S 2.714.
( Intervention was allowed. f5 W
(
- Subsequent to that Order this Licensing Board was established and held a prehearing conference on Dece=ber 6, 1977, to hear arguments on contentions not prevb usly accepted.
We consider first F0E, et al.'s and then GUARD's contentions seristim. F0E, ET AL., CONTENTION 1 "l) The seismic design basis for SONGS 2 & 3 is inadequate to protect the public health and safety and does not comply with 10 CFR, Part 100, Appendix A, in that the earthquake which could cause the maximum vibratory ground motion has not been assigned as the safe shutdown earthquake." (- Intervenor F0E, et al., argued that recent earthquakes 1 - cnd new discoveries of a new fault made by the California Energy Resources Conservation and Development Commission 1 indicate that a review of the seismic design basis for i SONGS 2 & 3 is in order. Applicants, Southern California Edison Company and San Diego Gas and Electric Company (Applicants) stated they would prefer the contention to read more narrowly and offered their own version of an acceptable contention. Staff found F0E, et al. 's contention suitable for discovery purposes but suggested that it should be simplified and clarified at the close of discovery (Tr. 546-47) . The Licensing Board is comprised of the sate members' that served on tha, Petition 3c--a
k . The Board finds Intervenor F0E, et al.'s contention suitable for discovery purposes. After discovery the Board will consider parties' suggestien to limit the scope of this contention. In light of new evidence concenaing dewatering and cavities discovered as a result of dewatering, Intervenor F0E, et al. , Staff, and Applicants agreed that a contention in this regard should be adopted and presented the following stipulated contention (Tr. 552) which is also agreeable to the Board.
~
' (' la: "Whether the cavities caused by the Applicants ' temporary dewatering of SONGS 2 & 3 site will . have an unacceptable adverse effect on the capability of structures and equipment of the SONGS 2 & 3 to withstand the design basis seismic events." - F0E. ET AL., CONTENTION 2 F0E, et al.'s Contention 2 has been withdrawn (Tr. 570). FOE, ET AL., CONTENTION 3
- 3. "10 CFR 51.21 and 51.52(b) and NEPA require that the Applicants shall submit an Applicants '
Environmental Report - Operating License stage and that such report contain the latest results , of the ongoing marine study required under the coastal ccmmission permit. Joint intervenors are entitled to review both the AER-OLS and the Marine study at the operating license stage and
=ay take a position and offer evidence concerning them."
I ( . This contention does not raise any factual issue and for this reason is disallowed. F0E, et al., asserts that it only wants to preserve its right to challenge the adequacy of the Staff's FES should it fail to consider the California's Marine Review Committee Report (MRC) (Tr. 601) . The Staff is . required to consider all available information that is relevant and significant in preparing its knvironmehtal Statement. Failure to do so would appear to be a reasonable basis for challenge when the Statement is issued. F0E, ET AL., CONTENTION 4
.(
- 4. "The Applicants have not comolied with
' 10 CFR Part 50, Appendix E regarding emergency plans since because of the juris-dictional diversity of the several state and local agencies involved and their in-adequate fundings and staffing, appropriate and coordinated emergency plans cannot be developed. An operating license should not be granted for SONGS 2 & 3 because the various emergency response plans are so complex, overlapping, and difficult to hnplement that in the event of a nuclear accident the safety of persons in the surrounding areas will be imperiled." .
The Board in its October 26, 1977, order found that this contention was stated with sufficient particularity and basis to meet the requirements of 10 CFR S 2.714 and allowed inter-
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vention on this basis. l l l O F
( -5'
- At the prehearing conference F0E, et al. , offered a different wordin.g of this contention. Applicants and the Staff countered with separate versions of their own.
The . Board is of the opinion that the contention as stated in F0E, et al.'s petition is acceptable for discovery purposes. Parties will have an opportunity to ask for a refinement of this contention after discovery is completed. FOE, ET AL., CONTENTION 5 F0E, et al. 's Contention 5 is withdrawn (Tr. 644-65) . i
. FOE, ET AL., CONTENTION 6
- 6. " Joint intervenors contend that the public health and safety, and the spirit and intent of 10 CFR, Part 50, Appendix C (1.B) require, as matter of law, that the applicant, prior to the issuance of an operating license, set aside adequate funds to cover the costs of permanent shutdown and maintenance of the facility in a sate condition at the termination of operations; the applicant has not done so, and intervenors contend that an operating license should not be granted absent such an undertaking."
9
( -6' At the prehearing conference F0E, et al., proposed a new wording of this contention:
" Applicant has not shown that it possesses or has reasonable assurances of obtaining the funds to pay the estimated cost of operating the plant for the period of the license plus the estimated cost of perma-nently shutting down the facility and main-taining it in a safe condition."
F0E, et al., contends that "the only thing that would satisfy (regulations) at the minimum wculd be in the form of an escrow account to assure that the money will be there at the end of the useful life of the plant so that either the state or the government or ( future ratepayers don't have to pay for it." g W Section 50.33(f) deals with the financial qualifications of an applicant. It provides in pertinent part:
"If the application is for an operating license, such information shall show that the applicant possesses the funds necessary to cover esti-mated operating costs or that the applicant has reasonable assurance of obtaining the necessary funds , or a combination of the two."
The Regulation is amplified by Appendix C to 10 CFR Part 50.which sets forth guidance on the financial data
, required of license applicants. Appendix C reads in pertinent part:
1 1 l l i
. l . -( _7_
i
". . it will ordinarily be sufficient to
. 14 show at the time of the filing of the appli-cation, availability of resources sufficient to cover estimated operating costs for each of the first five years of cperation plus the estimated costs of permanent shutdown and maintenance of the facility in safe con-dition. It is also expected that, in most cases, the applicant's annual financial statements contained in its published annual reports will enable the Commission to evaluate the applicant's financial capability to satisfy this requirement."
The Regulations do not require, as F0E, et al., asserts, the setting aside of funds for the ultL= ate decommissioning of the facility prior to the issuance of an operating license. ( Since there is no such requirement, F0E, et al., has failed
, to establish the basis for its contention that Applicants , should be required to " set aside" decommissioning and maintenance funds. There is nothing unique about the San Onofre Nuclear Generating Station, Units 2 and 3 or of the Applicants, San Diego Gas and Electric Company and Southern California Edison Company which suggests that any different consideration should be given them than to other It is not uncommon for utilities to construct 1
utilities. more than one unit at the same site and it is not at all unusual for there to be more than one Applicant.
(\ . The question of the escrowing of funds at the time of licensing for the decommissioning is the subject of a rule-making proceeding presently before the Com=ission. F0E, et al. , has the option of participating in that proceeding. Contention 6 is disallowed. FOE, ET AL., CONTENTION 7 F0E, et al.'s Contention 7 is withdrawn (Tr. 658).
- FOE. ET AL.. CONTENTION 8
- 8. "An operating license should not be granted for
( SONGS 2 & 3 because the National Environ = ental Policy Act, requires, as a matter of law, con-sideration at the construction permit stage of
, energy conservation as an alternative to nuclear power and such requirements have not yet been complied with."
F0E, et al., relies on Aeschliman v. U.S. NRC, 547 F2d 622, (1976), as interpreting Sections 102(c)(ll6) and 102(d) of NEPA to require as a matter of law, the consideration by NRC and the Applicants of energy conservation as an alterna- ! tive to the proposed nuclear facility. That is not the-holding of Aeschliman. Aeschliman merely addressed the propriety of a test that was imposed by the_ Commission in
- l o
S S
~,e - , a y-- . - -m y--
.( .
l a proceeding for a construction permit requiring a thresh-hold showing by an intervenor before the issue could be brought up as an issue in controversy. It merely removed the threshhold test criterion previously established by the Commission. Need for power and alternatives to the nuclear facilities were extensively considered at the construction permit stage. Cf. Southern California Edison Company, et al. , (San Onofre Units 2 & 3), LBP-73-36, RAI 73-10, pages 958-59, 964-67 (1973). Further= ore, the projected generating capacity of. I San Onofre 2 & 3 has been included in all power forecasts for Applicants' service area since the construction permit was issued more than four years ago. We take notice o. the fact that the California Energy Commission has found need for at least one additional generating station (Sun Desert) for the area served by at least one of the utilities involved in this proceeding since the NRC's approval of the construction permit for San Onofre Units 2 & 3. . F0E, et al. , has not stated any basis for consideration of conservation as an alternative to San Onofre, Units 2 & 3 in the operating license proceeding. F0E, et al.'s Contention 8 is disallowed. ! l l e !
1 { . FOE, ET'Ab., CONTENTION 9
- 9. "In light of accelerating costs of uranium, the decreased availability of domestic uranium and the lack of any guarantee that SONGS.2 & 3 will have a fuel supply, the cost-benefit analysis previously adopted for ' SONGS 2 & 3 is shown to be clearly erroneous and a proper cost-benefit analysis would now show that the costs outweigh the benefits and that the operation of SONGS 2 & 3 will not be in the best interest of the publ,ic and will not be.
in conformance with NEPA. At the prehearing conference F0E, et al., reworded its contention to read: b "The Applicants' projection of fuel costs ' over the life of the plants does not adequately account for escalation of uranium prices and therefore the cost-benefit analysis is in error." Ir. 658. Staff supports the rephrased contention; Applicants opposed vigorously the original contention and stand on their original argument in spite of intervenors' new offer. 1 The Board believes that the contention is adequate for I discovery purposes, and therefore Contention 9 as rephrased-(Tr. 658) is allowed. 4 i i u 1 l
l
\ , _
11 F0E, ET AL., CONTENTION 10
- 10. "As a matter of law, the National Environ-mental Policy Act of 1969 requires that radioactive waste management, a_ matter not fully considered prior to issuance of the construction permit, be considered prior to issuance of an operating license for SONGS 2 & 3."
F0E, et al., contends that because San Onofre Units 2 and 3 are nuclear reactors that will generate nuclear waste materials, waste management procedures must be analyzed in detail before an operating license can be granted. F0E,et,
, _a_l.. , cites Natural Resources Defense Council v. NRC 547 F.2d (D.C. Cir., 1976) as the basis for its position.
Waste management is covered by 10 CFR S 51.20(c) as set forth in Table S-3. In NRDC v. NRC the court examined the requirements imposed by NEPA to consider environmental Lmpacts associated with the uranium fuel cycle and reviewe'd the Commission's rulemaking proceeding which had developed a generic analysis of those impacts. With respect to the Commission's rulemaking.the court approved the overall approach and methodology of the fuel cycle rule and found that, regarding , most phases of the fuel cycle, the underlying Environmental . l I
l Survey of the Nuclear Fuel Cycle (November 1972) represented an adequate job of describing the impacts involved. The court, however, found that the rule was inadequately supported by the record insofar as it treated the Lapacts frco reprocessing of spent fuel and the impacts from radioactive waste management. The Commission, in response to the court's action, issued a General Statement of Policy, 41 Federal Rezister 34707, and announced an intent to reopen the rulemaking proceeding on the environmental effects of the fuel cycle to supplement the existing record on waste management and reprocessing impacts. I The Commission indicated an intent to handle the question of the environmental impacts of waste management and reprocessing 2enericallv rather than in individual licensing proceedings. On March 14, 1977, the Commission published its effective interim rule governing the treatment of waste management and reprocessing, 42 Federal Reeister 13803. The interLn rule is to be effective pending determination of a final rule to result from the rulemaking proceeding. The appropriate forum to raise questions regarding generic matters of waste management procedures is in the Commission's rulemaking. F0E, et al.'s proposed Contention 10
is not a legitimate contention for consideration during the operating license proceeding. It is disallowed. FOE ET AL. , CONTENTION 11 F0E, et al.'s Contention 11 is withdrawn (Tr. 664). GUARD'S CONTENTIONS The Petition Board considered and granted the interven-tion of the Groups United Against Radiation Danger (GUARD) in its Memorandum and Order of October 26, 1977. GUARD's addenda to its original petition was dated August 17, 1977, and set , _ forth seven proposed contentions. Sea ff was of the view that collectively the seven contentions (each of which essentially addressed the same matter, evacuation planning) could be reduced to two contentions. The Petition Board agreed with Staff and accepted the two condensed contentions suggested by Staff. They are:
- 1. "The applicants have not complied with 10 CFR Part 50, Appendix E regarding emergency plans since, because of inadequate funding and staffing of the several state and local ~ agencies involved, appropriate and coordinated emergency plans
. cannot be developed.
.d -
14 .
- 2. "As a consequence of increases in freeway use in recent years and the influx of transient and resident individuals into the exclusion area and low population zone, there is no longer assurance that effective arrangements can be made to control traffic or that there is a reasonable probability protective measures could be taken on behalf of individuals in these areas including, lLf necessary, evacuation, particularly considering the unique geographic constraints in these areas; 10 CFRthus, app)licants S 100.3(a do not comply with or (b)."
At the prehearing conference GUARD offered a rewording of its evacuation contention listing some eleven different aspects. Of these eleven items, some are mere statements { which raise no issue of fact; some are contentions without any supporting basis; some are contentions which challenge the Commission's Regulations; some, especially #11 are issues that were taken into account at the construction permit stage going directly to site suitability, population center, growth, and distribution of population. To the extent issues have been covered, they are res judicata, l especially to this intervenor who participated as a party , l at the construction permit stage. The Board is of the opinion that of the eleven items , 1 raised de novo at the prehearing conference the ones that
, are admissible are already. embodied in the two contentions i
- , e v.
1 s 1 I
. c.
( . previously found acceptable by the Board in its Order of October 26, 1977. The Board will permit discovery on these two contentions, subject to further refinement at the close of discovery. In addition, Intervenor GUARD is entitled to conduct discovery on the issue of cavities which occu'rred as a result of dewatering. That contention is listed above as F0E, et al.'s Contention la. GUARD also seeks intervention on F0E's Contention 2 which deals with the Price-Anderson Act. GUARD was of the opinion ( that it could take part in cross-examination on that issue, but now that F0E, et al., has withdrawn that contention, GUARD seeks to adopt it as its own. Putting aside the question of timeliness we consider the contention on its merits. The argument is that the decision in Carolina Environ-mental Studv Grouc v. United States Atomic Energv Commission, 431 F. Supp. 203 (W.D.N.C. 1977) declaring a portion of the Price-Anderson Act to be unconstitutional is grounds for staying the issuance of the San Onofre Units 2 and 3 operating license until a final judicial interpretation is obtained and any necessary legislative action is completed. i .
{' However, the Carolina Environmental Study Grouo v. AEC does not provide either a factual or legal basis for an issue in this proceeding. The case is not binding in this jurisdiction, and it has no impact whatsoever on the existing Price-Anderson Act statutory scheme. No injunctive relief was sought in that case and none was given. As recited by the Court (at page 226), a single federal district court judge is without the power to enjoin the operation of an Act of Congress. The court did not intend to impede the operation of the statu-tory scheme pending Supreme Court adjudication. The case is on direct appeal to the Supreme Court pursuant to 28 U.S.C. (, S 1252. Pending a judicial determination that actually impacts on the operation of the Price-Anderson Act the NRC licensing procedures remain unaffected, and should not be modified for purposes of this proceeding. t There is no basis for an issue in this proceeding as a 1 result of the Carolina Environmental Study Grouo v. United l States Atomic Energy Commission decision.
/"
1 CONSOLIDATION RE: GUARD At the prehearing conference Applicants suggested that because GUARD has interests in this proceeding similar to F0E,'et al., GUARD should be consolidated with F0E, et al. The Board feels that the better procedure is to allow GUARD to have discovery in its own right on the issues it raised and which were accepted by the Board. The Board will further consider the question of consolidation of intervenors at a subsequent prehearing conference. C . RE: CITIES OF ANAHEIM AND RIVERSIDE By its Memorandum and Order of October 26, 1977, the Petition Board consolidated the Cities' of Anaheim and Riverside (Cities) with the Applicants because the interest of the Cities is essentially the same as the Applicants'. This similarity is based on the Cities' prospective co-ownership of the facilities as a result of its formal notice of intent to accept the Applicants' offer pursuant to the terms and conditions of a settlement agreement. , l At the prehearing conference Applicants objected to the consolidation of the Cities. It appears that formal con- , l summation of the agreement has not yet materialized (Tr. 531) . l (
_ . '( . At the prehearing conference counsel for the Cities represented that only the question of investment tax credit remains; the agreements themselves have been negotiated and will likely be executed early in 1978 (Tr. 532). The investment tax credit matter involves a ruling by the U.S. Internal Revenue Service (IRS) which is expected by mid-1978 at latest (Tr. 533). The thrust of Applicants ' position appears to be that 10 CFR 5 2.715a provides for consolidation of parties only and, since the Petition Board dismissed the Cities' petition for leave to intervene in its Order of October 26, 1977, they ( are not parties, hence, they cannot be consolidated.* The Applicants do suggest that at such time as the Cities become parties, they may be consolidated. The Applicants concede that when the Cities are formally co-owners, they would become parties and would be consolidated with Applicants (Tr. 575). In light of the cloud which has been placed on the co-ownership question and the uncertainty of its resolution the Licensing Board is of the opinion that it should stay the - This, in our view, is a distorted interpretation of the Petition Board's Order. Its dismissal of the Cities ' petition was predicated on the consolidation of the , parties.. ( I
l
)
' '{ _ 19 -
ruling consolidating the Cities with the Applicants until such time as the Applicants and/or Cities advise the Board of the outcome of the tax credit question and final resolution of the pending settlement agreement. In the meanwhile, the Cities may participate in discovery. DISCOVERY We have been advised that the Final Environmental Statement and the Safety Evaluation Report will not be available until mid-1978. It appears that there is more than adequate time for discovery. Discovery may begin on the accepted contentions and
- (- will continue until further notice of the Board. Each party
, shall submit a report to the Board on or before June 30, 1978, setting forth the status of its discovery and its proposed
~
schedule for completing discovery. IT IS S0 CRDERED. FOR THE ATOMIC SAFETY AND LICENSING BOARD d, , /\ l$ lh YA.w/ ~ John M. Frysiak', Chairman Dated at Bethesda, Maryland This 27th day of January 1978. k
.. s Mlc A
V:llTED STATES OF AMERICA
# C -
NUCLEAR REGULATORY COMMISSION - "*: (,: g 4PR17;gg;,{2 ATCMIC SAFETY AND LICENSING BOARD _ h[.[*g .-}3' T*T[
. Before ncministrative Jucges - - ,-' ?
Robert M. La o, Esq. , Chair an '
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Richard F. Cole, Ph.D .,.t/ A. Dixon Callihan, Ph.D SERVE 0 pPR 1 In the Matter of D ocket Nos. STN 50-528-CL STN 50-529-OL AR CUN;. P'JSLIC SERVICE COMPANY, Et A1. f STN 50-530-OL (Palo Verde Nuclear Generating Station, Units 1, 2 and 3 Operating License ) Proceeding) )
) April 16, 1981 MEMORANDUM AND ORDER
- 1. BACKGROUND On July 25, 1980, the U.S. Nuclear Regulatory Comission (the Commission) published in the_ Federal Register a notice of receipt of an application for facility operating licenses for Palo Vcrde Nuclear Generating Stations Units 1, 2 and 3 :nd tice of cpp:rtunity for hearing (45 Fed Xeg. 49732).II Such -
licenses would authorize Ari:onc Public Service Ccapany, Salt River Project Agricultural Improvement and Power Dictrict, Southern California Edison Ccmpany, El Paso Electric Company, Public Service Company of New Mexico and Ari:cna Electric Power Cooperative, Inc., (Joint Applicants) to possess, use and operate Palo Verde Nuclear Generating Station, Units 1, 2 and 3, three pres:r = ' :u r nuc'.d r ra tw 'th'. fx i'ities) 'cca: M en th_ Jcint Applicants' site in "ariccpa County, Arizona, approximately 36 miles west of the City of Phoenix. 1_/ The July 25,19SO, notice is a clarification of an earlier notice published in tha Federal Register (45 Fed. Reg. 46941-43) on July 11, 1980 f1 0 % lb '
s - The notice of npportunity for hearine provided that any- persen whose - p' interest may be affected by this proceeding may file a petition for: leave to -
- intervene 'in accordance with the Commission's Rules of Practice-(10.CFR 2.714). -
- - - In response'to this notice, on August 11, 1980, Patricia Lee Hourihan- submitted -
a timely petition for le. ave to intervene and a request for: hearing- in the above-identified matter for herself a.; well as on behalf of- two- other person , Kevin - Dahl and Christcpher Shacy. On November 21, 1980, Ms. Hourihan filed a Suppiennt to' Petition for Leave tc Intervene and Contentions (Supplement) setting forth - - 28 cententions. . On December 2,1980, a prehearing conference was held before this. Atomic m Safety and Licensing Board (Board) to consider the petition for leave- to intervene and to permit identifi ation of the issues in this proceeding. At the prehearing - - conference, the Board orally granted the petition for; leave to-intervene as to - 7 C Mr. Hcurihan, thereby making her a full party to this proceeding.2/ (gs, gcJ73gcn he-M atfur nill te ref?'r=d to is "Intervenor.") At the aforementionsd prehearing conference the parties--Intervenor, - Joint Applicants, and tha tCC Staff--indicated that they would confer in an effort to arrive at a stipulation regarding the languese of Intervenor's remaining contentions.3/ Such a stipulation was executed and filed with the Board on_ December 12, 1980. With rr;ari to the Intervenar's contentions nct withdrawn in the prW:r- .
- n; ccc.f:.1..a. L stipu ntien ir.dicates that tne Intervenor further witi. rc .
Contenticns Nos. 3, 9,10,15,16, 20, 21 and 22 from Intervenor's November 21, 1950 2/ Tr. 16.
, 1/Tr.30. During the : curse of the discussion of Intervenor's contentions at the prehearing ccnference, Intervenor withdrew Contentions Nos. 19, 24, 25 and 27 (Tr. 30, 32).
\
[' ~ Supple. men: an; for.te; frca the remaining cententicas a group of rewordad
. . 1* -
contentions which all the parties agreed were valid contentions (Appendix A to the Stipulation) and a group of reworded contentions that the parties were not able to agree were valid contentions (Appendix B).. . . ' Joint A331icants and the NRC Staff have each filed written respenses to the dis;utSc conten; ions. In the view of the Staff, only Contention 6B of . the contentions set forth in Appendix B to the Stipulation should be accepted as a valid contention in this proceeding. Joint Applicants oppose each of the disputed contentions. By Order dated January 6,1981, the Board afforded the
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Intervenor the opportunity until January 20, 1981, to respond'in writing to any contention wnich has been objected to by Joint Applicants or the Staff. No responce by Intervener har been received. (t . II. CONTENTIONS
- T e ". :7'// ' 2ti' Of the filings ty the Petitioner and- th Other par'.ie:,
tnis 3ccrd cenciut:s th:: a hearing is warranted and that it should c:nfira - - its earlier oral ruling that Ms. Hourihan should be admitted as a party to the . proceeding. Her petition provides sufficient assertion of her interest and she has submitted admissible contentions which identify specific aspects of the subject matter of the proceeding as to which she wishes to intervene. Accord-ingly, the Board will grant the petition for leave to intervene filed by l1s. Hourih v . i:e:ther lr. Dahi nor I;r. Shuey hace recuested party stt.us, thc_ l's. Hcurihan will be the sole intervenor in this proceeding.5/
.- w
, fl Tr. 12
- Further, the Board has concluded that i't should approve- the December-12, '
- 1980 " Stipulation of Parties Regarding Contentions and Discovery."- By so doing
' the Board accepts as issues in controversy in this proceeding three safety contentions (Contentions Nos. 1, 7 and 8) and one environmental contention (Cententicn No. 5).
Appendix B to the Stipulation sets forth three safety- contentions (Con-tententions Nos. 6B, 17 and 23A) and five environmental contentions (Conten- - tions Nos. 6A,14,18, 23B and 28) that the parties were not able to agree .
' were admisrible contentions. We will address each of these in turn. -
CONTENTION M0. 6A ~ ~ The Applicants have not analyzed the financial conseq'uences of an Anticipcted Transient Without S: ram (AT'dS) event which can result in a Class 9 accident. [By this contention, Inter-vencr is not limiting the area of the contenticn to only.ATWS (}
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ev:nt; thr: ccult 1nd to Cice 9 accidents.] -
. The intarzero- in this contention raise: the issue that the potenti&1 dollar costs resulting frca the consequences cf an ATUS event (including an ATUS event that could lead to a Class 9 accident) have not been considered Ly.the Jcin: Applicant:.
The Commis:fon recently issued an interim policy statement entitled
" Nuclear Power Plant Accident Consideration Under the National Environmental Policy A.-t c' 19:"' (E . '. Reg dC101, Jena 12,13T'-), '.;hich raisti Commission policy on the censideration of environmental irnpacts arising from D
f
more severe very low probability accidents (Class 9 accidents) that are (, physically impossible.El The interim policy s'tatement provides: - It is the Commission's position that its Environmental- - - Impact Statement shall include considerations of the
, site-specific environmental impacts attributable to accident sequences that lead to releases of radiation and/or radioactive materials, including sequences that -
can result in incdaquate cc:lir.; f reacter feel and to melting of the reacter core. 4 Mcwever, this interim policy statement applies to the. Staff only.ar.d not. to the Joint Applicants. Only applicants who file their. environmental reports . . after July 1, 1980, are required to address such Class 9 risks. (45 Fed. Reg. . 4C103). The Applicant's environmental recort was submitted on December 5,1979. Even if the contention were reworded to assert that,the Staff had failed
~ ~ - '
totakeintoaccountthecostsofthereferencedATWSe'vHtsjts'tillmust fail, at least for n w. The centantion is premature and in addition fails to .f A meet the specifici:y requirements of 10 C.F.R. 52.714. Accordirgly, it ::nnot be acmitted.
~ , ' CC"TU'T:CM NC. 53 The Applicants have not incorporated measures designed to mitigate a postulated ATWS event.
The Appeal Scard his m6de it clear that " unresolved" issues such as ATWS cannot be disregarded in individual licensing proceedings because they have generic applicability. Vircinia Electric and Power Comoany (North Anna Nuclear Power St3 tier., Units I cnd 2) A'_AO 491, 8 NT.C 245, 248 (1970) The Appeal Board added: "T!>" ? m"st 5 some explaraticr. why construction cr ope-ition c?n proceed even thcu;h an overall solution has no been found." (ld.) 5/ This policy will be applied to the Staff's environmental assessment of Palo "erde Nuclear Generating Station since it is an ongoing review.
.- See Fed. Reg. 40101, at 40103.
( ., __ g e
-e -
-+ -
f In Northern States Power Comcany, (Monticello Nuclear Gejerat;tr1Plant,., Unit 1).,_,'_
.. - ALAB-611, slip op. at 19 (September 3,1980) the Appeal Board stated that the -
Licensing Beard must lock at the record and assure itself that ."the generic - safety issues have been taken into account in a manner that is at least plausible and thht, if prcven to be of substance, would be adequate to justify operation. Thus tha basic mitter set out in the contention must be dealt with in thir pecceco:c;. The is:ve to hs. d-cit w':" under this contention would be (a) have - the Joint Apolicantsincorporated measures to deal with ATWS events in their Palo Verde facility, and if not (b) does this pose a safety question that would fore- - close issuing an operating license for the facility.5/ For the above reasons the Board finds this contention to be admissible. CCNTENTION NO. 14 , _ _ . , , Thre Applicants have failed to show the effects of cumulative ridiction on the Primary Syst2m cf the PVNGS and the likelihoed az: these eff: cts will not shorten the' life-span of the plant. Thi: contentien is not acmissible for the reason that it fails to meet the bases and specificity requirements of 10 C.F.R. 12.714. The Intervenor stater re bcris for the contention. Furtherr. ore, it is not clear from the contention what " effects" are of concern to the Intervenor and how these effects will lead to a shortening of the life of the Palo Verde Nuclear Station soic to be cf ccncera in this lictnsing proceeding.
-6/ Sr.caic tne Commission resolve the ATWS issue or other generic questions by rule ce ragulation, such action would be binding on this Beard and prevent litigation of this matter. See 10 C.F.R. $2.753.
9
. s 9
- - % e
( i~ C0t'TE"~:C:: I.O . D - The Applicants have failed to adequately consider'the ~
. report an " Spent Fuel Heat 'Jp Following the Loss of Water -
'During Storage" prepared by the Sandia Laboratories for the NRC in September of 1978 (SAND 77-1371).
This centention is t.ntcceptable for the reason the Intervener hes fail:d to previde a bar's with retsonable specificity as required-by 10 C.F.R. E2.714. There is no shcving how the cited report relates to the Palo Verde Station or . why such report should be considered by the Joint Applicants.
- ~
CONTENTION NO. 18 The Applicants have not adequctely figured the costs and impacts of storage or disposal of spent fuel and other radioactive wastes, for the term of the operating licenses, in the ecst/benefii. anhlysis. This contention is too vague to be admissible. It' fails ~tc~~ meet the specificity and bases requirement of 10 C.F.R. 5 2.714. Principally, it is
, not clear what issue tha Intervencr is asking the Scard to accept for litigation. Moreover, it is not clear what " impacts" are referred to.
_CC"~E.'iT:CN r0. 23A The Applicants have not adequately considered the effects of on-site sacotage. The Board recognizes the difficulty that an intervenor has with regard 1 to asserting a cauenticr. en tha sccurity pian for a nuclear raacter with sufficienc b7.si. at.. spscificity t' satisfy the requirements of 10 C.F.R.
!2.714, since the security plan is not available to the intervencr. The Scard, hcwever, dces not believe that the basis cited by the Intervencr in i t
N l
8-the support of this centention, the general availability of the Barrier Penetra- ' tion Handbook, is sufficient in spite of this difficulty. The basis' cited for
. such a contention should be site specific, i.e., stating specific reasons why a
-security plaa may not be adequate for this particular station. The mere avail-ability of a Handbook giving the times certain types of physical barriers can resist penetration, does not show that the security at the plant is insufficient.
Further, the nexus betseen this bock dealing with harrier penetration, _ i.e., an attack on a plant from outside and, on-site sabotage is not apparent. The con ten-tion is not admissible. CONTENTION NO. 23B The Applicants have not adequately considered the economic cost effects of off-site-sabotage. This contention is unacceptable for the reason tFst it fails to satisfy d ({ the "beri:' an "::Ec- #f:i t/" etcuirac.e.n s of ;^ C F R. . 22.714 The simple Es:scM:n that the. transmission line routes are public and that transmission . lins tcwers can be toopleo easily dces not support the contention. The Intervenor has fciled to indicate any reason why she believes that such sabotage will occur at ths Palo Verde Station or that it can have any substcn-tial effect on the economic viability of the facility. The statements in the Intervenor's " Explanation" are, in essence, nothing more than speculation. COMTE?iTION NO. 28 T9e catc Tl323 out%r:ghs the cost of alternative cources of er.ergy. The Anplicants have not sufficiently met the requirements of 10 C.F.R. 51.21. The Apolicants
- have failed Arizona's to shcw energy the alternative available to meet neecs.
O k'
.g. l (f .
, This contention lacks the basis and specificity required by 10 C.F.R. 12.714.
It is nothing more than a collection of bare assertionsthat the costs of PVNGC , outweign the costs of alternatives, that Joint Applicants have not met the requirements of 10 C.F.R. 551.21, and that Joint Applicants have failed to discuss the availabie alternatives to PG"S. There is no basis stated to support ar.y cf these as.wrtiens. The crestructica per.,it Final Environmental Im ?.:t 1 Stater.ent did consider various alternatives and their costs relative to PVNGS (FES, September 1975, Chapter 9) and the Licensing Board evaluated that discus-sion (LE?-76-21, 3 NRC 662, 690-693, (1976)). Furthermore, the Intervenor has
'~ ' ~
notindicatedhowtheJointApolicantshavefailedtomeet1U"C.F.R.650.21. In sum, the Intervenor has totally failed to shcw how the consideration of alterna-tives to PV"25 has baen defic:ent. Accordingly, the contention lacks the required basis and caecificity a:;d is nct admissible in this proceeding.
. 11?. 0RDET For all the foregoing reasons and based upon a censideration of the entire record in this matter it is this 16ch day of April,1981 GROERED
- 1. The Pecition For Leave To Intervene in this proceeding by Patricia Lee Hourihan is granted;
- 2. The Stipulation of Parties Regarding Contentions and Discovery, dated Ce:smba- 12, 15c ,, _is acproved; .,
I
- i
- 3. Intervancr's C:ntentiens Nos. 1, 5, 63, 7 and 8 are admitted as issues 1
in contreversey in this proceeding; and ' { (
'\
- l
' l
.. -- . . _- .. . =. _ __
_ 10
.c ,
- 4; Inter v eriu; 's ' Cardenticn: !!an. CA,14,17,18, 22A, 220 and 28 are rejecrei A notice of hearing implementing this. decision is appended to this
~
Memorandum and Order as Attachment A. - i- Judge Richard F. Cole and Judge A. Dixon Ca11than, Me:ters of the Board,
- join in this Memorandum and Order.
4 4 i
- '. FOR THE ATOMIC SAFETY AND LICENSING BOARD I
A Rose.*! c's. LaIo W. MS
'6
- -Administrative Judge
{ J I , I' I i i . 4
.I
. - _ _ _ . - . , ,_ - _ . , - , .I
+ o p ilD h a e U M.... .. .; Ce. rM. t. .-.. ..n
- ..; S in.c Q COOKE C us20 m NUCLEAR REGULATORY COMMISSION SY 1
.d sE: i1981 >
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. 4 . . . -. . a 2 .. .- _
-. r . P_Mm. ' i'h.<.
Before Administrative Judges:
"A ~b:ii.::5 s=.d n i'2Q' Rl Louis J. Carter, Chairman 4 'h
'e Mr. Ernest E. Hill hul l O' Dr. David R. Schink 1.:J:
)
In the Matter of: )
)
ARMED FORCES RADICEIOLOGY ) Docket No. 50-170 RESEARCH INSTITUTE )
) (Renewal of Facility .
(TRIGA-Type Research Reacter) ) 'Licensc No. R-84)
) August 31, 1981 SPECIAL PREHEARING CONFERENCE MEMORANDUM AND ORDER (Allowing Interventions and Ruling on Contentions)
On April 15,,1981, this Board ordered that a Special Prehearing Cerfcrsnce be hei"Icr the curacs t of considering cententicr.: which w ve s~ill 19 diF0ut9.
- T: = car.fersrce was held on Friday, May 1,1951, at the NRC Hearing Recm in Sethesda, Maryland, and was attended by rciembers of the public
+
cr.d all pcrtis: ' tere present with their attorneys and scme of their ex;;erts . As hereinafter set forth we allow the interventien of Citi: ens for Nuclear Reac: r Safey, Inc., and rule en their contentiens. 1/ Oubli: Nctics was tiven cn April 22, 1991, d6 Fed. Reg. 22998. 9 e e 9
I. Alicwance of Interventico c' C.':FF On December 10, 1980, the Citizens for Nuclear Reactor Safety, Inc. (CNRS) on its own behalf and on behalf of its memoers petitioned for leave to intervere in this matter. The petitica stated that pet'tioner is a non-stock Maryland corporation whose members are residents of Mcntgomery Ccunty, Maryland, where the reactor, cperated by the Armed Forces Radiobiology Research Institute (AFRRI), is situated. The petition alleged that three members of CNRS live within two thirds of a mile of the reacter and that two of the three are parents of a new born infant. On December 24, 1950, the Defense Nuclear Agency, which operates the Licensee, filed an opposition to the petition for leave to intervene of CNRS averring that the petitioner had failed tc est:clish stencing, that the con-tenti-9s and the cetition were outside the scope of the renewcl action under
- consider:tien, and that the contentiens were contrary to the manifest weight cf the d:cumsried 2vider, e cf reccrd en file with the NRC.
4 The first of the oppositions relates to the fact that none of the mette.rs of CNRS - who it was averred lived within two thirds of a mile of the reactor - were identified. The balance cf the petition consists pri-marily of responses to the allegations which aver the contrary and, in fact, c nstitute argumerts on the merits. .These points are enumerated in the margin. 2/ ll The Defensa "u:'.eer Acency copositicn filed December 24, 1980, averre: inter alia, (1) that tne AFRRI Emergency Pian addressa all credible acc' der.ts; T2) thct emergency response cacabilities at AFRRI and the surrcunding community
. meet all NRC regulatcry requirements; (3) that reutine discharges cf radioactive e?'luents meet all NRC recuiremer.ts;-(4) that radioactive air borne effluents l- -cnittee by AFRRI net- NRC regulatory recuirements; (5) that water, soil and l
vegetation monitoring is adecua:e; (5) that AFRRI has demonstrated that cperation i sof the TRIGA reacter will fully ccmply with the recuirer.ents of safety and law; l- , (7) that the AFRRI site dces not constitute a significant hazard to public health and safety; (8) that the aging'of the AFRRI TRIGA reactor dces not imsact upcn safety; (9) that- AFRRI security plans meet.or exceed all NRC requirements; L
T.
- . _3 On December 24, 1930, the Staff filed its respense to the petition for leave to intervene alleging .that the Petitioner had failed to demonstrate that it pcssesses standing in its own right and failed to identify at least ene member with standing.
On January if,1951, Petitioner filed an Amendment to its Petition For Leave To Intervene to establish the identity and interest of several of its members and its authority to represent these individuals. Affidavits from . Bruce Moyer, Rebe'cca Moyer, Eevin Grylack, Irving Stillman, Bernard Phillips, Celcres Helman, Elizab2th Entwisle, and Edith Villastrigo were appended to the amendment. Theke persons state they live from 0.3 to 4.6 miles from the-s site of the reactor. On January 26, 1981, Staff filed its response and noted that the petitioner's amencment addressed the defects advanced in Staff's criginal
. .respense and tha by identifying certain members by name and establishing tha:
- heir resideocas are in proximity to the reactor and authorizing CNRS to re:rasent then in this preceeding, these affidavits were, in Staff's view sufficient. Staff stated also that counsel for Licensee authcrized Staf#
to advise the Scard that the Licensee concurs in the Staff's conclusion and did not intend to submit a separate response to the amendment. Ncr-- has bean filed.
*de fimd :"tt th: petitioner has cured :ne defects in its petitien concerning the interes; crd standing requirements and in accordance with the previstens of 1C C.F.R. 5 2.714 Petitioner's intervention is allowed. - '
i Fcctn :2 2 (centirucd) J (10) tha management and internal or;ani stion at AFRRI are ccmpetent to coerata the facility within applicable safety. limits; and (11) enviren-mental imc::: aper & sal data submit:ec by AFRRI adequately accress
. envircr..mcncal impacts.
i I i l
, _4_
l i-l II. Accroval of Sticulation of March 31. 1921 l i l' I A number of meetings were held between the parties at which attempts !' were made to stipulate admissible contentions. Following these on March 27, 1981, the Stsff, Petitioner, and Licensee met, and as a result were able to
-sti:ulstt as tc the admi::ibility cf six cf Petitioner's proposed conten-ti ccs . Agree:ent was r.:: reached en seven additional cententicns. Bcth sets of contentions were filed with the Board in a stipulatien signed by the Parties and the Petitioner en March 31, 1981.
That stipulation is approved. 3/ - III. The Unsticulated'Contentiens - Consideration and Rulinas Centention 1. Accidents I 1) alleges that in the event of a rapid loss of ccclant while the reactor is in the pulse mode, there could be a-suddan tem;er=.t':re ele"stien suf#icient to cauce mul tiple cladcing failure -
. or fissicn prcduct releases in ext::s of the limits provided in 10 C.F.P.
Par: 2C. Staff argues that the reactor cannot be pulsed unless it is critical and it :arnet be critical withcut the water moderater. Thus Staff's posi-tion is that there is no basis for a contention which is stated as a physical impossioility. Staff further argtes that it would be duplicative of centen-tien 2. Staff asserts that loss of coolunt accidents are covered by the sti; cia _E: c:n:entica. . Licensee also urges the Eoard to concider this contar. tion as posing a shysicci imocssibility, thus they are at a icss as tc kr.cw what to defend
- ~
against. v 3/ The stipulated contentiens are stated in full in Apcendix "A". Tha - unstipulated contantiens are stated in full in Ascendix "S". I
Intervencrs, on the other hand, allege that they have evidence to support-their pcsition, and made an offer of proof to the effect that, inasmuch as a loss of water coolant is a " finite" process, there are ccope:ing reactions between thermali:stien of the fast neutrens occurring in the water and also the heating up of the fuel element mcderator and c'.sddi ;. They further propose to demcnstrate that the rates at which these cccur will inter 5ect at such a point that a power excursicn is pos-sible to produce the kinds of effects abcut which they are concerned. In other words, what was postulated is not that there is a total absence of
. water but that the rates at which they occur is critical in permitting a pcwer excursion of the type about which they are concerned.
Clearly the Ecard is met with a conflict. Ocubts', differing cpinior.s and cer reverry have been c.nd will cen inue to test men and women in sciencs. Intervencr will be given the opportunity to prove that which l Staff and Licensee censider to be an impossibility. 4/ This c:c;ertien is accepted and is renumbered Centention 1. Appendix I.S.5/ Ccr.tention 1. Accidents I 2) alleges tact the Hazard Safety Report 1 (HSR) errcnecusly ccatluces that radiation doses wculd' result only frem sub-mersicn expature to nehle gasec released, but-Petitioner contends that i J "ic.- :du:1 " s u'd c;eble Edditicnal exposure due to what is terr.ed l I l
. 4/ Even the e*Mnent 3ritish physicist Saren Ernest Rutherford is believed to have said this: "The energy produced by the breaking dcwn.of the at:m is a l vs.y peer. kind of thir.g. Anycne who expects a scurce of power frcm the trans-forraticn of these acces is talking mconshine", Sectamber 11, 1933.
j/- Sti;ulated Cententien 1. Accident I is renumbered Cententien. 1. Acci-cents 1.A.
~
1 i
" int enal emissions".
Counsel for Petitioner on April 14, 1981, filed a Petition for Waiver of Ccmmission regulations alleging that the facts of this case present "special cire"ms:;ncs " within the meaning of 10 C.C.R. Secticn d 1.7?3 3.ch that the applicaticn of the concentraticn and dose limits set fo';h a: 10 C.F.R. Part 20 and Appendicas 3 and C would not serve the purpose for which these limits were adopted, i.e., would not adequately protect the public health and safety. j The affidavit attached to the Petition was executed by Petitioner's counsel and in summary avers: (1) that the AFRRI facility is in.close pr0ximity to two hospitals whose patients and staff are expcsed, on a . de'1" enr.t4r"c"s len; term brsis tn emis icns and effluents from the facility; (2) tha th= fecility 4: ir close p-cximity to many resicential cweilings and several schec's. including elementary schools, and that elementary scheci statect: c re ptr*.icul'rly vulnerable tc the radielegical ha:ards of the AFRT.I emissicns and effluents; and (3) that the facility is in cicse proximity te many busi arses and that becsuse it is situated in the midst of a densely i populated urban / residential area the population dose that results 'frem rce:ine eniscions and effluents is significantly higher than wculd be the case if the facility were more remotely sited. peti:icric's ;ci, ppahrs :: :ce that there trc 'cth. mcre pce:le, ! and ;tc;1e who are more ser.ceptible to health hazards frem radiation in :ni-middle cf Bethesda,' Mar.vlard, than contemplated b.y tha regula:i:ns and that
. this demcgrachy, including close proximity to hosritals and elementary t
a 4
. .-- - - , -m y- 2 1., -,.
9 . --
4 schecls, presents a ":cecial circumstance" so as to cermit an attack on the validity of the Ccmmission's regulations under 10 C.F.R. Section 2.758.
'Intervenor admitt2d at the Special Prehearing Conft;rence that "the affidavit is inartfully phrased . . ." Tr. 25. It further appeared that the Petitioner is, essentially, trying to present tne issue of whether sick pec;1a wcold be rcre susceptibls te what it term: "intarnal caissions" or inhalation 2s oppcsed to sub-e ? ion. Petiticner ascerts it has several reports and studies done by reputable scientists to support that propcsition and is pre-pared to submit them at hearing. ! Petitioner further asserts that there is a regulatory void-in that
- Part 20 concerns itself only with submersion doses. Petitioner does not ask that _the Ccmmission waive application of Part 20. It merely wishes the
. C:mmissica to ccasicer that in tae absanch of any stanierc: applicable to research reacters the Scard must consider the specific facts of this _ case
. cue to the pecximity of sick peccle and young people, specifically these of 1
elemen: cry and pre-school age. Tr. 25. This Board reserves decision on this contentien pending receipt frca the Petitioner within fifteen (15) days of the service of this Order of a more specific affidevit concerning whether "special circumstances exist to permit this Board to entertain Peti:icner's attack en .the validity of the 7/_rmiss'cr's reccle.ticrs".10 C.F.R. Sectic , 2.758. I cn the basis of the Petitien, the revisas affidavit, an: any res;onse thers:c, we detsrmine that a crima facia shewing has been made . , we shall, before ruling cn the merits, ~ certify directly to ' the Cor. mission 1 a ./
I 1
)
_g. for determinaticn, the ma-ter of whethsr th'e application cf Part 20 and
' Appendix should be " waived or an exception made" 10 C'.F.R. Section 2.758.5I
_Ccntantjer 2. ec tiderts II li concerning the N-16 diffuser ~systen has
. been withdrawr by Petitioner.
C:n'f :#-> ?. . ac cidr-- !T 2;j] concerns the effect of a pcwer excur-sicn accident with reduction in the thermalizing effect of hydrogen with a resulting explosive zirconium steam reaction. Both of the said accidents it is alleged would result in a multiple cladding failure. Staff opposes the admission of this contenticn, as stated, averring it lacks an adequate basis and raises an issue which is neither cencrete ncr litigable. Staff's position with regard to the zirconium interaction is that
. the :ircenkm; hydride (whicn is the fuei wi:a urer.ium) is sta := and simply . dcas not have any explosive reaction with either s: sam or air. Staff argue:
that the respenses supplied by the Petitioner de not support the Petition. Staff further argues that the explosive reaction cententien shculd not be allowed as it is merely a multiple cladding failure accident produced by either e pc'.4er excursion cr less of cociant, and thus identical Etc stipulated Contentien 2. Accidents II-4). Petitiener insists that the concern is the explcsive rirecnium reactierr based en the work of Dr. Earl A. Gulbransen,'/i Petitionar had S/ This is renumbered Centention 1. Accicents I-B-2. Z/ Perearch orofessor, Department of Metallurgical and Materials Engineering
- at the 'Jniversity of Pittsburg, Pennsylvania.
8- _--_-----.L'-_...---.__.__.._-
_g-i
.- proviced Staff with ccpies of letters from 0,r. Gulbransen addressing this question. Staff argues that neither letter addressed a TRIGA reactor nor urantuartirecnium hydride, but referred tc the tin zircenium alloy, zircaloy, which is used as fuel cladding in commercial power reactors but not in the TRIGA reacter. There is no scientific basis for an alleged event that cannot happen, Staff asserts, basing this belief en the research and tests of which it has kncwledge ind the fact that uranium zirconium hydride is t- . extremely stabie and a non-reactive substance.
It is the cpinien of the Board that the matters to which reference has been made clearly shew a factual disagreement which is best resolved at- hearing unless discosad of prior theretc. This contention is allowed. C7n'=n'icn 2. Accidente II Elb) alleges a loss of coolant accident with the same reaction as in the prior contention and is allcwed. l , Centention 3. Testine Facility. Petitioner centends that the AFRRI~ facility is a testing facility within the meaning of Sections 31.a(3) and 104(c) of tne Atcmi: Energy Act of 1952, as amenced and Secticns 50.21(c) and 53.2(r) cf 10 C.F.R. Part EC. This contantien is rejected on the clear wording of tha reguictions. Petitioner states the issue to be:
"Whether the determining mode of operaticn for the AFRRI reacter is, or shculd be, its steady state mode or its cuising mcde. If it is the latter, the
.AF?R: pruar level exceeds 101 TWT and the reactor falls withir. the definition of a testing reacter."
Peti:icn:c ci'..; ' cap;cr: ;f ' s por: tic., the caca of Trustees f . Columbia University (Decket No. EC-ECS, ALAE-3, "cy 25, 1970, 4 AEC 349). i e
- O 1
l 1
. . ~ Fetitioner he: misread the decisicn 6f the Appeal Beard which, in our view, clearly holds that the thermal pcwer is_ to be determined by operation in the steady-state mode, rather than the pulsed mode. More particularly, that decision explains the issue fully when i:
- j7:
.,. pr- viuusly sttted, the Cali:mbia reactor would be
- thcri .4 to crerate steady-state pcwer levels no greater than 250 kilowatts thermal. The cuestion then became.whether, in terms of the potential for releases of radioactivity, operation in the pulsing mode with maximum pulse peaks of up to 250,000 kilo-watts involves hazards considerations essentially ecuivalent to or greater than those asscciated with steady-state coeration at 10 megawatts thermal, which levei is the cri crien specified in Section EC.2(r)(1).
The reccra here is clear thd;, whin the subject rSacter is culsed, the power rises to the maximum pulse height and than drops after a fracticn cf'a second. The puire is limitea in height and duration by an inheren: prcmpt necative tem erature coefficient of reactivity. D: this TRI3p reactor the cycle fer pulsing can, at a
" M ur cec.- :nly :nce every 6 minutes. Even wi-h . the mi "atr cul-te heigh reacned for the fracti:n c# :
secc.nc during each guise, the reacter, during the puis-ir.g cycies, wculd be operating at an average power level concioer:bly lets than it: autPorized steady-state pcwer l ei el . Therefore, even if the reactor were to be pulsed cs of:an as pos:ible, the total energy generated would be substantially les than if the reacter had been cperated cer.tinucusly at its steady-state full pcwer limit of 250 kilcwatts thermal; and the resultant fissicn product inventory would be correspondingly lower. Viewing this in the context of our earlier s:ste ents as t the intended reach of Section 50.2(r),. 3 .hi ; t it m. fest th- -P- dste: inire scde of Ope".-
..# .cr t 7:c ;;rpeses of Sec::cn 50.ltr)(1) is the
- tisci-state mode, which mcde would produce the greater
' tis:ica procuct inventcry. The steady-state fuii pcwer 1.imit.for the subject facility'is, of ccurse, far belcw the 10 megawat thermal level specified in Section 50.2 (r)(1). , . 4 pce:rdingly, cur respense to the Scard's first cuestien is that the Applicant's react:r is not a " tasting facility" as defined ~in Section 50.2(r). 'Je note, in this c nnecti:n, 9
1 the Staff's statamant in the comments submitted to us thn: the Commission his licensed approximately 20 similar facilities over the past dozen years as research reactors, even though those reactors could pulse to power levels far in excess of 10 meg; watts thermal; and that no TRIGA facility has been licensed as a " testing facility". 3 1 1 Licensee urge: that Clearly th'e matter presented is a legal issue. since t're Board is required to follcw the decisions of the Atomic Safety and Licensing A; peal Eca-d the tes-i:9 facility centention dces not warran further consideration. See Consumers Power Ccacany (Palisades Plant), Dccket tio. 50-235, ALA3 01a, September 25, 1970, 4 AEC 418 at 423. The Scard for the reasons stated holds that the contention is denied. Ccntention J. Sitinc. Petitioner contends that the reactor is a
" testing reactor" and therefore Part 100 requirements apply as to which ,
reasonable assurance cannot be given that Applicant's Emergency Plan is 2fe.u-t:. 7: :s cara ntion is rejecten inasmuch as ..c have det<c-ired tht: thi-is no a " testing reacter'. Se= cur ruling on Contanti:n ;beve. Giver that determination, further consideration of this contention would be tar.ta-mount to a challer.ge to existing regulations which is proscribed in 10 C.F.R.. Section 2.758(a). Contention 5. Routine Emissions I. Petitioner here avers that actual and probable violations have taken place which demonstrate that accli: t wiil w m:W.- n c er;tions sc, as to ccccly with PLrt 20 require-me ::. Petitioner alleces (1) that frcm 1952 tc 1979 releases resultad in
, 'snele bcdy deses in excess of EPA's limit-cf 25 MRE.'1; (2) that contaminated sciid.wastas wera incinerated; (3) that released data indicates a high ,
i I a I proba:ility that dcses tc the p;biic were ib, excs:s uf 0.5 RE4 and thus vic-lated the principle that emissions fecm Applicant's operation be kept as low as is reasonably achievable (the ALARA principle); S/(4) that the 1971 Environmental Repert indi:stes rates as high as 1-5 mrad /hr. where-50 to 50 percent of the area within one mile is residential; and that it is highly
- crobable that tna dc.ce lini: was excceded thus violating the ALARA principle.
Parts (*.). and (2) are not necessary to consider as part of the word-ing of a contention. They are in the nature of supporting bases and as such may possibly be used as part of the evidentiary presentation, subject, of ccurse, to all applicable rules of evidence. Parts (3) and (4) are allowed. NEPA mandates our study of the envircnmental consecuences "to the fullest extent possible" 42 USC 4332. It is an essential clament cf cur decisicn-making process. T'eugn the darc re#2rr-d to b; :ntervencr 2y be s: ewha: ttric, ;
- factual basis has, none the less, been stated, which this scard finds i sufficient fer scrissibility, although greater particularization would be helpful. The contentien is marginally admissible. The Board expects these is:ues to be mcre fully explored and elucideted pricr to hearing leaving open the possibility of better specifi:ation prior to the next pre-hearing conference.
E/ Since 1975 tb2 Ccmmission has sub::ituted "as icw as is reasonably
' achievable" (?LARA) for "as low at practicable" (ALA?). Ses In the Rulemakine C-1-75-5,1 'RC 277, 272 (1975).
9
13 - centre':- 9 Rau '-: Emi cier.s II alleges thtt "special circut-stances" within the meaning of 10 C.F.R. Section 2.758 warrant the Board's consideration of whether the off-site air and waterborne release limits set. fcrth at 10 C.C.R. Par: 20, and Appendices 3 and C'thereto, are adecuate to crct=;; the pLblic heal:5 and safety of the populaticn in the vicinity o' tha AFRRI reactor. Intervencr suba.itted an affidavit as part of its Petition for Waiver, but a: we stated abe'!e ir our consideration of Cen:ideraticn 1. Accidents I-2), we reserve decision pending receipt of a more specific affidavit with regard to "special circumstances" which are alleged to exist. Cententien 7. Securitz centains a recitation of five categories of past violations' and avers that neither the~ physical security plan nor the 2 h# 50- > ef se"urity vic~ations de enttra'.e that the ccr.trclied areas can be
~
! . pts.uc._J f~z : . .;;c . di ,3 :- r of s,::cin' rc C + r2Lsr4G tccer:fr.g --
- Ine ::andard set fcrth at 10 C.F.R. part 73.
It is the Board's coinion that the security contention shculd be allc.ed; however, it is limited to Building #42, which houses the reactor, and r,ct the entire !!ctional "aval Medical Center on whose grounds the AFRRI o site is located. =/ Intervenor's difficulty in being more specific is obvicus. Significant 4 s;.ci "'_3 'q : . J. 1. :ct poss ble pricr to access cc confide 'ic.1 4 se:uri t y inf:~'aticn. In tne 5 card's opinion, Licensee has sufficient b'eis to
, b2 cn notice as to what must be defended. Discovery, linited as abcve,
[ 9/ The buildinc is describec in the AFxRI Reactor Facility Safe y Analysis
- ecort, May 195*. .
t I-i
/
. will pe::r.it eer'.y e;-exa:.tinati n of tha ;t tit? iESU' -
IV. Subject to the determinations set forth above, the following schedule shall .be folicwed by all parties: (c) thirty (20) days after the date this order issues the first se: ef i..tcriegatories shall be filcd; (b) thir y (20) days thereafter, the answers to the first set of interroga;ories shall be filed; (c) twenty (20) days thereafter, the second set of interrogatories shall be filed; (d) twenty (20) days thereafter, the answers to the second set of interroga: cries shall be filed; and (e) not later than forty-five (45) days thereafter, all Moticn>
.f:r St-r=ry Dis:t[it cr. shall be filed.
- ~ I: E:.' '.~ .' ::' !.' .
' - FOR THE ATr;2IC SAFETY ATO LICEN!ING,2 GARD
.i !
[Il//mW
/
, wT lWW Louis J,. C:rter, Cnairman ADMIfr ATIVE JUCGE Dated at Bethesda, Maryland this 31st dry of August 1981. l t
i e 8 J e 4
SERVED OCT d IS OC.O'.ETED
. " u" .-
I- ~ UNITED STATES OF AMERICA a
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CCI 27 P1:59 "d1 ATOMIC SA:ETY AT4D LICENSING SOARD g/ 4) 4- ,. --, - y : 3 Before Administrative Judges: 2 ' v.< .4... d.. .c'u' E. . .'Ti.G James L. Kelley, Chairman 5.1.u: :: Dr. Peter A. Morris 1 Dr. Richard F. Foster-r ^
)
In the Me ter of )
) ~
COMMCGEALTH EDISCri COMPAT1Y ) Docket Nos. 50-2Ea-OLA (Quad Cities Station, Units 1 ) . and 2) ) (Spent Fuel Pool Modification)
)
, October 27, 1981 CPDER 4 (Reflecting Actions Ta'<en at Prehearinc Conference) a , A special prehearing conference pursuant to 10 CFR 2.751a was taic at tra Rx's Island County Office Building in Red Island, Illinois, n Oc: h e 12, 1351. Rese:ssntatives of the Applicant, the 26,C. Staff, 4 i and eaca of the o gani:ations petitioning to intervene in this prccaed-a { ing ers present and participa:ec. This Order reflects the major 4
< mitters discusset and at:icns taken at the Conference.
! .Actission of Petitioninc Cr;anizations as-Parties. Timely peti-tions to intervene were filed by Citizens for Safe Energy ("CSE") and Quad-City Alliance for Safe Energy and Survival ("QASES"). Subsecuent-discus: .ns in '. + ;eu:kners, t'; .- A: li:st and :16 NRC Staff rescived s:r.e -is' tic', cuestions. frca the A:olicant abcut standing, and a list'of a; aed-ucen contentions was developed. Our independent aopli-ci- Rn af..t 6 stir i'n;-slus-one-valid-content ion' tes satisfies us tha:
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the petitions for_ intervention of these_two organizations shculd be
, : granted. 'CSE and 0ASES are adm.itted as pa' rties. We will refer to theT.
. collectively as "the Intervenors."'
' A tnird _organi:ation, Older Americans for Elderly Rights ("0AER"),
, also petitioned for leave to intervene. However, the areas of interest - indicated in the'.c pc'; tion were tco' vague to qualify as. contsntions.
- Although reminded .in o'ur notice of the prehearing conference-of their righ; to' file further contentions, they chose not t0 do .so. They .,ere _
+ represented at the prehearing conference by Mr. Jack Smith, their Dire:- ter, who indicated -that CAER was no longer interested .in car:icipating
~
as a party in_this case. Tr. 14. The Chairman informed Mr. Smith that, under ~ tne circumstances, he. cculd choose to withdraw the OAER petition, cr the Beard would deny it. Mr. Smith indicated his preference for a 5:ird danial. Tr. 15. The OAiR pcti-icn is cenied. 1
, Admit +.ed Cententier.s. The par:ies have sticulated that a list of I
nine c ntentions -- set 'for:h in Apoendix A to tneir. joint " Stipulation of Issue and Cor.ter. tion:" cf Oc cher 2, 1981 - "should be_ admitted for censideration 'as matters in controversy." Cur independent review of these cr: posed contenti;ns leads us to agree that these contentions
- should f:xi admitted. Their admission is, of course, witacut'arejudice to
~
tne possibility tnat cre or more of-them may'later prove to be fit
- : nd#da:es f:r semr.ery_ dis;csitics under 10 CFR 2.7d?.
7
~Oiscuted Contic:i~.s. The :n:arcencrs prepcse three additional J i
contentions wnich tne App:icant anc the Staff op:cse. Each contention-1 and = cur ruling on its admissibility are set 1forth below. e e 4 i
. .. . . .. - . - - _ . - ~ .
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i Cententien 2: The Licensees have not considered in suf-L fi:i < deti;l :he cessicle al:senativss tc :ne orcooseo exoansfor cfi scen: Lfuel st: rage caoacity. Specifically, Licensees have not Considered preferable alternatives frr. managing the spent fuel during the remainder of: the operating license for the Quad Cities :
' Nuclear Station, namely, the possibilities ef:
a.- shutting down the Quad ' Cities Nuclear Station cnce thef racks presently installed in spent fuel. pcols are full, or-
~
tb. reducing electrical output from the Quad Cities Nuclear Staticn in conjunction with either energy conservaticro ano pricing alternatives which would . reduce demand or increas-ing the'use of underutilized fossil fuel plants to meet cur-rent ~ demand. 1 Rulina. This Board is not responsible for considering broad energy 4 alternatives in the abstract. Our job is to apply the Commission's rules and feceral statutes applicable to the ccccaratively narrow propo-1 4 sition before us -- whether the Applicant should be allowed'to expand } tne cacacity. of the spent fuel pool at the Quad Cities facility. In tna: centext, any responsibility of ours to expicre the- alterna-4
.. tives outlined in this centention must flow from the National Environ-
> mental :tiity 1.c; ("NE:A) ar.d implementing Commissica regulations i (10 CFR Part 51) which do require consideration of reasonably available alternati.es inre;pt t::e vehicle of an environmertal impact state-4 1/ ment. However, that requirement is only triggered where the t' actian proposed will constitute a " major Commission action significantly j affecting the quality of the humar, environment " . 10 CFR 51.5(3)(ll). The At:r'; Ene :" a ct c:ntains no c:rp3rable " consideration cf _1/ ..
'4 '
alterr,atives" re;Jirement. l-9 e i i l ($ l l
4-o In.3 number of recent cases, intervenors have argued that procosed ex;ansions of particdlar spent fuel pools would have a "significant
.effect" on the environment, thus requiring an environmental -impact statement. See, e.g., Public Service Electric and Gas Co. (Salem i
Nuclear Generating Station), ALAB-550 (1981); Consumers Power Co. (Big Rock Point), ALAS-5:6 (1931); Pcrtiard General Electric Co.' (Troian Nuclear Plant), 9 NRC 263 (1979); Nc-thern States Power Co. (Drairie Island -Nuclear Generation ?lant), 7 t;RC 41 (1978) .=7/ In none of
~these cases was the requisite effect on the environment shown to exist.
4 Nevertheless, the Appeai Board made it clear in Big Rock Point that, i unless and until some generic determination can be made, these deter-i minations must be mz;e on a case-by-case basis. - ALAS-635, slip cp., p. 36, note 35. i
, in tre criser' case, hcasyce, we du n0t havs in cxplici a!!egcti:n e
- of significant intact On the envir:nment, let alcre a substantial recced
~
. shcw'n; cf im:a:t. U Idditicn, we 40 ns; yet have tne Staff's environ-4 mental ana'.ysis; Stcff counscl stated -that an envircr. mental impact acpraisal (EIA) will be prepared, but it 3:parently will not be availa-
- - ble for some men
- ns. Tr. 29. In tnese circumstances, Big Rock Point i 'provides ' explicit direction that tne Board should:
awai . :re pre:aration cf the staf f's environmental analysis ... It ' is undse, if not imtecpe . to decide withcut the recced surper" s-p ; ,; . ,y 'a -t#: is c . .;cs.2ere regiew, whet,3r 3 ;;,gn , s,. ; nit icant ly ar r ects tne envir0nment. acti:n 1,., pp a: ,:o,. 3 e i
-.2/ We ask ine
, Staff to make c ?ies of taese decisions availsbie to the
- e. .in;ervenars.
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c.....:,.4. until after tne Staff's EIA is availacle. At that tice, if the Intervenors wish to pursue this contention (or perhans a contention revised in light of tne EIA), we wil' hear furtner argument and issue any necesstry rulings. Centention 7: The Licensees should be required to submit cost evaluaticns for handling, transportaticn and storage of the additienal #ucl whien . sill be stared in tne proposed racks fcr the rt~'i 'ar :.' "a c:. at".; licenses for the Quad Cities .1uclear Station. xc.1ng. inis contention is alsal,iowec. _..ne Inarcia,, qLalitica-tiens of an applicant for a reactor construction permit are subject to scrutiny. Sec 10 CFR Part 50, Appendix C. Ecwever, no ccmparable recairement applies to an applicant for an amendment of the kind sought here. Consu er: power Cc. (Big Rock Point Nuclear Plan:) 11 N.C 117,
.. -, t .r-: .r. ,r .
Inis cc .:=nt'cr. figr passibly be viewec as sometning cther than a . "#'rincia. ;ua14"ict-i; n' contention. Tnus, the cos ts of tne proposed mcdificaticns migh; be::.ne relevant if we evar.tuilly teccme ir.volved in c.._..e:<.- u, : ..~...: . . ... u, ~~,,2. ,., s. . , c3 2y ,.1.
. 4 ,.o.s. . :- , d co u v a. , " . . . . " . wo u 'e u only hacpen u;cn a determination of significant environmental impact.
Sncu'd such a determination be made following receipt of the Staff's E!;, contentiens based u?cn it should be draf ted cr. the basis of the J ;. g *
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A: the prs' :1 ring ccnference, the ~.qtervencrs scught to link this ccq;enticn with "isb::iq;ial hidd:n subsidies to tne nuclear pcwer ir.castry" and a4:n :r.e availability of cther s:cra:e technicass, such 3-:
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0 - 1 l Tr. 35-29. In the 'irst place. the :c.tention as drafted would ha<e *.o be St. et:r.ec ;;nsi erably to rea:n these thpics. Even assuming :.a e could be done, some health or safety relationsnip between these top cs i and the proposed modification would have to be established. We fail to see hcw this c:ald be done with respect to ns "hidcen sucsidies" question. The costs and policy soundness of such things as the Price a.nde son Act, dec:mmissioning, and feceral energy resear:5 programs are for tne Congress, tne Comnission and State cublic utility commissions, not this Licensing Board.
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. . . . . _, 'v'. .. - .i. - 2". = i ' d ' #.1 4.. '..v . u l d beccme relevant in this case should it appear that the Applicant's reracking propcsal is not acceptably safe. But if the requisite safety i
showing is made, an apolicant is free to choose among acceptable alter-n 2. +. r. ...
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, v v . . . c ,. . . 1.. .. The. ~ -.. o r . t_' - r. r. s :~ , a_c #p_ i l _uo t.h e. F,. ' . " . . Ci.:es Nuclear Sta:icn, are not adecuately designed to witnst;nd ' ear:ncuasas becauce the Safe Shutdown Earthquake (SSE) and the
- eriv r.; Basis Eirtnauake (OSI) which were estabished for the Ouad Cities Nuclear Station are ne longer aporopriate in light of new inf:-mstict about pcssible earthcuakes in the Quad Cities Area.
Som: earthc.ake scientists at the St. Louis University and the "i :.w :: here;-cn In titute feel that the Mississippi Valley is ripe for a n.3jcr ear .nquake. Rulirc. This contentico is disallowed. The NRC rule gcVern ng i conte cicos,10 CFR 2.71a(b), recuires that a petition include "... the s:e m.. =. n_:.c .v. w. w- m .. = +. 0
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" Bases" dces not meu, e. . :ent'iry oroof, Anich is produced at the hearing. Bst it d;es c; rite plate a cle d- articulation of the theory of the ::..ent'Or., s f'icient tnat the a cclicant can make an intellegent o
r e s o 2r. s e .
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-Earthcuakes' do not occur just anywnere; they occur only on a:tive
. faults. ;It + cum' pr:baciy be safficicq , Ihr ex:7ple, if a contention J'-
stated'that the previously established safe shutdown earthquake for Quad Cities was inadequate because new information would show that an earth-quake of greater magnitude was now expected on a particular fault. Or a somewht. e.cre general fornult:icn micht suffice. But tnis contention merely refers, without any specificity, to "new informa:icn about pcs-sible e:rthq;aket in tne Quad Cities Area." That is not sufficiently
-specific.
Discevery. The various dit::very technicLes (see 10 CFR 2.7aG} ces now available to the parties. Discovery shall be limited at this time, as the rule provides, to those contentions that have been admitted by the Board -- i.e., the Appencix A contentions of tne joint stipulation. The $;;r: 4 enc:5-ages tne parties to engage in info mal disc:'icry, t:- sh0w s::s restrair.: i n the nu-ber cf interrogato-fes, to fc -go h.v.> a..e.=.. + h r. i e_ n '. cs" i n_ . . ~. ', c . .. e .*
""2 cove .v, . .= r. .d '. o c- t. '. s..g.. '. ' , , - r,=_rc - . '. a ',e and resolve cifferences before bringing them to the Board.
Further Ac icos. It is 'not now possible to schedule any future. _ a::icts. The A;clicar. nas not complete: its applicaticn and until that . is cone the Staff cannct ccaplete its safety evaluation and E 2. . 'When th::a1dccuments are complete and served on the parties, it will be time t-
- rsidi" dates fo closing dis:avtry and beginning a 'hearitc. :n the c.v:::i e, should any p6rty believe :nat some action by the Scard is s
4
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.. .m-n u. u i t. . s. v..m. - .c . u - v';.* ve c nicnara r. roster ADMIN:STRATIVE JUDGE
/.
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ns.. James L. Ke,itey, unairT.an narv o. 4 r. 3 f .c a.r t. ,ir_ v'o e nie. r.
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t n '.S 4/13 day Ci. vCt'uvir, lus,i "O o ' 4 W e
C;',"I. ED l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION _r ATOMIC SAFETY AND LICENSING BOARD
. Before Administrative Judges:
Louis J. Carter, C hirman Ernest H. H'll Dr. David R. Schink gRVED APR ZM
)
In the Matter of: )
) Docket No.: 30-6931 ARMED FORCES RADI0 BIOLOGY )
RESEARCH INSTITUTE )
) March 31,1982 (Cobalt-60 Storage Facility) )
)
MEMORANDUM AND ORDER
, (RESOLVING ISSUES RAISED BY PETITION FOR LEAVE TO INTERVENE)
On July 28, 1981, the Director of Nuclear Material. Safety and Safeguards granted the application of the Armed Forces Radiobiology Research. Institute (AFRRI), filed August 28, 1980, for renewal of its By-Products Material License No. 19-08330-03 under 10 CFR Part 30. The license (amendment 14), as renewed, allows for the storage of Cobalt-60 in the AFRRI facility on the grounds of the National Naval Medical Center. in Bethesda, l Maryland, until July 31, 1986. On August 31, 1981, the Citizens for Nuclear Reactor Safety, Inc. (CNRS) filed a Petition for Leave to Intervene requesting a APPENDIX B 1 e,_ b
~ ~ a . -
l
, hearing on this licensing action. CNRS is an intervenor in the ongoing proceeding for the renewal of the operating license for )
the TRIGA reactor located at the AFRRI facility in Bethesda. See l l Docket 50-170 OL. Just prior thereto, on August 7,1981, CNRS' l counsel wrote to the Commission's Secretary, requesting that the Commission grant a hearing on the materials license application I and to consolidate it with the operating license proceeding. The Board considers that letter as having merged into the Petition for l Leave to Intervene. By order dated October 8,1981, the Commission directed the Chairman of the Atomic Safety and Licensing Board Panel (ASLBP) to designate a board to review the CNRS' Intervention Petition, to determine whether the hearing requirements of section 189(a) of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2239(a), and 10 CFR 2.714 of the Commission's regulations have been met and, if so, to conduct an appropriate licensing proceeding under Parts 2 and 30 of the Commission's rules. Pursuant to this order, this Board was established by an Order of the Chairman and Chief Administrative Judge of the ASLBP dated October 13, 1981, to rule on the aforementioned Intervention Petition. Pursuant to said Order, this Board was directed to determine (1) whether the hearing requirements of section 189(a) of the Atomic Energy Act, 42 U.S.C. 2239(a), and 10 CFR 2.714 of the Commission's regulations have been met;
(2) whether the petition must be denied because the instant proceeding terminated when the license was renewed on July 28, 1981; and (3) whether the staff had timely notice of the petitioner's interest in obtaining a hearing in this case. Section 189(a), supra provides in pertinent part, that: In any proceeding under this Act, for the granting, suspending, revoking or amending of any license...the Comission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding... Pursuant to 10 CFR 30.34, each license issued under Part 30 of the Commission's is made subject to the provisions of the Act, as well as to all valid rules, regulations and orders of the Comission. In Licensee's view, the first three words of section 189(a),
"In any proceeding", are crucial to the determination of whether petitioner may intervene, as of right, Licensee contending that the issuance of its license renewal terminated these proceedings, thus terminating any rights of CNRS to inteivene under that section. Under that interpretation, the CNRS petition can, according to Licensee, only be considered as a request to institute a proceeding during the tenn of a license, under the standards set out in sections 186, " Revocation," and 187,
" Modification of License," of the Act, 42 U.S.C. 2236 and i
2237, respectively, and 10 CFR 2.206 and 30.61. Licensee contends CNRS has not met the requirements of either of these 1 0
. 4_
sections and is therefore not entitled to a hearing. We agree that the requirements of sections 186 and 187 have no' been met.1I CNRS does not address the question of the timeliness of its attempt to intervene, either in its August 29, 1981 petition, or i in its August 7,1981 letter to Commission's Secretary. Counsel l for CNRS stated in that letter, that she had discussed the pendency of Licensee's Cobalt-60 storage license renewal in a telephone conversation with one John Hickey of the NRC's Materials Licensing Branch on February 4,1981, and had been told at that time that Mr. Hickey had not yet assigned the review of that license to anyone. Mr. Hickey is alleged to have stated his intention to delay making any decision on the Cobalt-60 storage renewal until the completion of the AFRRI reactor licensing
~
proceedings, since some of the issues being litigated there also relate to the Cobalt storage license. These allegations concerning Mr. Hickey's representations are not denied by Staff nor does Staff argue that the petition is untimely. Petitioner's counsel also stated in her August 7,1981 letter that she had learned, only the day before, that the NRC " plans to 1/ In general, Section 186 involves revocation for material I false statements or facts or conditions that would warrant
' refusal of the original application, or failure to construct or operate in accord with the terms of the permit or license.
Section 187 permits amendment, revision or a modification of the act or rules and regulations issued in accordance with the ; terms of the act. D
, . _ . - - _ -- ,m... , , ._ .--, . ,, , . , , . _ , . _ . e , - , . ,
l take first action on the application to renew License No. 19-08350-03 before the reactor proceedings were completed," and noted that "since notice of proposed actions on materials license application is not published in the Federal Register, counsel cannot determine when and what the final decisions will be." Licensee responds by urging that this Board consider the letter as an admission by CNRS that it had actual notice of the proceedings on the renewal of AFRRI's by-products material license not later than February 4,1981, and argues that no hearing should be granted where a would-be intervenor had actual notice of the proceeding prior to the determination. This rule is proposed to apply even if the failure to publish notices of proposed actions in the Federal Register might otherwise be considerea a denial of
, procedural due process. . .
This Board is unaware of any NRC decision which has defined the time frame within which petitions to intervene in domestic materials license proceedings must be filed. Nor it: this Board aware of any precedent which has squarely addressed the issue of whether the Commission's failure to provide notice of pending domestic. materials licensing aplications in the Federal Register l l
. ~
would constitute a violation of procedural due process, such as ~ to suggest that the untimeliness of an intervention petition in suchproceedingsoughttobeexcused.1/ The Comission's general rule as to timeliness of an intervention petition is set forth in 10 CFR 2.714 (a)(1), which provides, in pertinent part, that [t]he petition and/or request [for leave to intervene] shall be filed not later than the time specified in the notice of hearing, or as provided by the Comission, the presiding officer of the atomic safaty and licensing board designated to rule on the petition and/or request, or as provided in matters)-{3) 2.102 (d) / (relating to hearings on antitrust On the basis of the foregoing language, staff argues that this
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rule does not ' govern 'the timeliness of an intervention petition in an action such as this, where the license was issued by the Director of Nuclear Material Safety and Safeguards. See Edlow International Company (Agent for the Government of India on Application to Export Special Nuclear Material) CLI-76-61, 3 NRC 563,579(1976). Furthermore, 10 CFR 2.700, which describes the scope of "Subpart 6 - Rules of General Applicability" of the Comission's SI Because of their frequency, low individual impact, and the historical absence of controversy regarding them, materials licenses have not been noticed in the Federal Register, see Edlow International Company CLI-76-6, 3 NRC 563 at 579 nor does such appear to be equired under 10 CFR Part 2. 3,/ The subsection also sets forth factors which may be balanced in determining whether a nontimely filing should be entert ained. This rule, however, has been interpreted by the
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Comission to " assume that procedures for convening a hearing have already been comenced."
regulations (of which 2.714 is a part) states only that the provisions of this subpart are to govern [certain] procedures in adjudications, via those initiated by the issuance of an order to show cause, pursuant to 10 CFR 2.202; an order directing a hearing relating to the imposition of civil penalties, pursuant to 10 CFR 2.205 (e); a notice of hearing, pursuant to 10 CFR 2.104; a notice of proposed action, pursuant to 10 CFR 2.105 or a notice of hearing on antitrust matters, pursuant to 10 CFR 2.102(d)(3). By its very terms, then, 10 CFR 2.700 does not contemplate that the provisions of 2.714 relating to the timeliness of intervention petitions should apply to materials 4 licenses issued pursuant to 510 CFR 2.103 k and Part 30, unless the Commission orders that a hearing be held pursuant to 10 CFR 2.104, having found that such a hearing would be in the public interest, or unless the Commission, pursuant to 10 CFR s 2.105 (a)(4), " determines that an opportunity for a public hearing should be afforded." Simply stated, it is the board's o, inion that the issuance of the license renewal is not a "proceet.ig" under the act and- that M Section 2.103 which prescribes the action to be taken on applications for by-product material license simply provides that the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards may issue a license if it found that the application complies with the l requirements of the Act and the regulations. The right to a hearing under this section is limited to an applicant who has been notified of a denial of the application. s
under { 189(a) it need not hold a hearing before the license is renewed. See People of the State of Illinois v. NRC 591 F.2d 12, (1979) holding that the Atomic Energy Act gave Illinois no right to a hearing by the Commission of a " Request to Institute a Proceeding and Motion to Modify, Suspend or Revoke Special Nuclear Material License" where no formal proceeding had begun, for granting,suspendingorrevokingthelicense.5/ We think, however, that this case differs from the Illinois case sinee a fair interpretation of the facts indicates that staff indicated to petitioner that this meterial license would be consolidated with the ongoing proceeding making the operating license. In Illinois the. opposite occurred, there complying with 10 CFR 2.206 (b) and Section 555 (e) of the APA, the Director of Nuclear Material Safety and Safeguards advised the State of Illinois that no proceeding would be instituted. - We hold also that the issue of timeliness is'not determinative even though the Pe't ition for Leave to . Intervene was filed after the issuance of the license because justice and fair play require consideration of the petition. The representation of staff to intervenor's counsel has not been denied. The action of i 5/ While Sholly v. NRC US App. D.C. 651 F.2d 780,11/19/80 cert. granted 5/26/81, would appear to hold that a request for a hearing is sufficient under section 189(a) we believe that ruling applies only with regard to significant changes in the operation of a nuclear facility and not to material , licensing. , l 4
staff, we hold, is an estoppel that may be asserted--even against the government. We think petitioners relied to their detriment on staff's representations. To hold otherwise would violate our notions of " elementary fairness" Moser v. United States 341 U.S. 41 at 47, 71 S.Ct 553, 95 L. Ed 729 (1951); USA v. Lazy FC 4 Ranch 481F.2d985(1973). See also Wisconsin Public Service Corporation, Kewaunee Nuclear Power Plant, LBP 78-24, 8 NRC (1978) where our brethren held that confusing and misleading letters from the staff to a prospective pro s_e, petitioner for intervention and the failure of the staff to respond in a timely fashion to certain comunications from such a petitioner, constituted a strong showing of good' cause for an untimely petition. Thus, under the compelling circumstances6 _/ of this case we believe petitioner should have opportunity to be heard if petitioner has the requisite standing. In the related operating license proceeding (Docket 55-170),
' ~
t'he petitioner was granted the right to intervene where members were identified who lived 0.3 to 4.6 miles 'from the site of the reactor. An organiation such as CNRS can establish standing through its memoers. Here, protection of the members is within the " zone of interests" and staff does not dispute this concern ! for the protection of the health and safety of its members. Not 6/ See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. 435 US 519, at 543, 98 5 Ct. 1197, at 1211, 55 L Ed Zd 4601 (1978).
every risk with which the Comission is substantially concerned is perforce, one which must be deemed to create standing in some member of the public. It is necessary to determine whether or not petitioners have alleged a potential injury which is particularized to the individual petitioner and not one which is
" shared in substantially equal measure by all of a large class of citizens" Edlow International Company supra at 576 citing Warth v.
Seldin 422 US 490, 499 (1975). See also Houston Lighting and Power Company (Allens Creek Nuclear Generating Station Unit 1) ALAB 535, 9 NRC 377, 390 (1979). We believe that petitioners have failed to make such particularized contention. A general description of the nature of cobalt storage may assist in understanding why this is so.
,' Unlike reactors, which generate fission products and have the potential for airborne and waterborne sffluent releases, cobalt-60 in a facility, such as this, serves only as a source of gama radiation. We can conceive of no pathway by which either airborne or waterborne contaminants could be released to adversely affect members of the public.
The cobalt-60 source is maintained within water and concrete l l shielded structures to protect the workers in the facility. If I the shielding were to in some way be lost, the intensity of the gamma radiation is reduced very rapidly by distance. At a distance of 300 meters the dose rate would be reduced to a very O
1 l low safe level (10-100 mr/hr). At 600 meters (0.4 miles) it would be reduced to the level allowed for a worker in a restricted area
. (2.5 mr/hr 10 CFR 20). At 2000 meters (1.25 miles) it would be reduced to the level allowed for a person in an unrestricted area (0.25 mr/hr 10 CFR 20) and at 3 to 5 miles it would be reduced to approximately background level.
Thus there is no mechanism by which the AFRRI Cobalt-60 facility could possibly cause gamma radiation exposure to members of the public residing at distances of 3 to 5 miles. The petitioner alleges as an injury only proximity of the cobalt facility to its members. Unlike the proximity nexus of ) nuclear reactor proceedings where accidental fission product release from the reactor may occur such cannot here occur because of the wholly dissimilar nature of a cobalt facility. Reactors
'. may generate fission products and do have the potential for airborne and waterborne efflulent releases while the cobalt in this facility does not produce that effect since it is used only as a gama irradiator. In sumary, this is staff's position and we agree.
Petitioner argument that there is a hazard of low level gama radiation which will emanate from the storage facility is not supported by the physical facts of the nature of the facility. The further allegation of interest relating to the issues of emergency planning building access and security are not l sufficiently particularized. To assume, arguendo, that I L --- _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ . . _ .
1 petitioner is correct, any order which may be entered in the licensing proceeding will affect the cobalt facility located within the same building. In conclusion, we determine the answers to the issues raised by the Commission in its October 13, 1981 order as follows: , (1)(a) The requirements of section 189(a) of the Atomic > Energy Act 42 USC 82239(a) have not been met since the renewal of a by-products material license is not a " proceeding". (1)(b) The requirements of 10 CFR 2.714 have not been met because the petitioners has failed to make at ; east one particularized contention alleging a potential injury which is not shared in substantially equal measure by a large class of l
, citizens.
l (2) The petition if otherwise sufficient for reasons of standing would n'ot be denied on the grounds that the instant proceeding terminated because (a) the license renewal is not a proceeding and (b) even if considered a terminated proceeding there were sufficient grounds based on reasons of elementary fairness or estoppel to permit a hearing. (3) The staff, in the boards view, had timely notice of the petitioner's interest in obtaining a hearing in this case, but for petitioner's lack of standing this was of no significant consequence in this case. Therefore, it is this 31st day of March 1982 ORDERED -
1 l i That the petition for a hearing is denied. FOR THE ATOMIC SAFETY AND LICENSING BOARD r Louis . ICarter, Chairman ADMINI ,ATIVE JUDGE e e
117 b4 I in the first category those on the improper segmentation,1, 2 2, 5, 8 and 9. I put in the VRS category, 3, 4, and 6, and I 3 wasn't quite sure where to put 7. That is the one I think that 4 had to do with Part 30 and I think it might well go into the c 5 second category VRS.
. E j 6 MR. PYLE: Let me say that I got on to this particular R
$ 7 case after the contentions were drafted.
h, 8 j JUDGE FRYE: Uh-huh. I J j
=
9 MR. PYLE: And even with the attorney who draf ted h10 them will admit that they were less than artful, the drafting,
=
II { that they were done in a hurry. 12 j
= We probably will do a major re-editing and recasting 13 fz of the contentions if the Board permits that in order to submit I4
{= three or four or five good solubles as opposed to nine that are 15 not quite on point. I6 As we admitted in our brief to the appeals court, we 17 y are basically having one complaint and we recognize that as well E 18 as everybody else and will probably want to take the opportunity E 19 I to revise those. 20 JUDGE FRYE: Your basic one complaint being that you 21 are concerned about incineration. 22 MR. PYLE: etLc.4.o Involving productions the incineration system. 23 ~ JUDGE FRYE: Yes. 24 . MR. PYLE: My folks don't really have a problem with 25 - the addition of the storage facilities. It is just what we see 1 l ALDERSON REPORTING COMPANY. INC. l I JIl%E*- __ APPENDIX C l
l 118 l 1 1 coming on the horizon. b
'() b 5 2 JUDGE FRYE: Right. That was the way I read it too.
i - 3 That I guess brings up the next point since we basically then
4 got two categories of contentions, those that are directed toward 5
- ; segmentation and those that are directed toward volume reduction P.
j 6 and in particular, incineration. '
- C 22 7 It would seem to me, and this gets back to the schedule
\
j 8 i to a certain extent, that it is most unlikely that you will not l 2 9 8 be able to state a good contention on the segmentation issue. 10 e Does the staff and TVA agree with that? s
) II MR. LAROCHE: Would you repeat that?
l l* 12 JUDGE FRYE: It is most unlikely that they will not 13 state a good contention on the segmentation issue. z I4 MR. RAWSON: I would be happy to speak to that first, [= 15 Mr. Chairman, I think that the staff would agree that given the 16 guidance of the Appeal Board has given to Petitioners in its I I7 h
=.
decision, it is unlikely that the Petitioners will be unable 18 j
$' to frame the contention which would meet the admissibility require-I9 3
i _! ments of the 10 CFR 2.1714. That is not meant to reflect anything j 0 on the merits, f i I JUDGE FRYE: Surely, I am not talking about the merits I ji 2 at all at this point. I mean after all they have a basis it 3 seems to us to be perfectly good and tnat is the TVA's environmental 24
- assessment and so that really reduces it to an argument over 2
f' where it is specific enough. Would you agree, Mr. LaRoche? I s ALDERSON REPORTING COMPANY,INC. 1m. i
p l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Nuclear Regulatory Commission In the Matter of )
) Docket Nos. 50-259 OLA TENNESSEE VALLEY AUTHORITY ) 50-260 OLA
) 50-296 OLA (Browns Ferry Nuclear Plant, ) (Low-Level Radioactive Units 1, 2, and 3) ) Waste Storage Facility)
CERTIFICATE OF SERVICE I hereby certify that I have served the original and six conformed copies (four copies for the Commissioners) of the following document on the Nuclear Regulatory Commission by depositing them in i the United States mail, postage prepaid and addressed to Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Section: Tennessee Valley Authority's Brief Respecting the Commission's Review of the Atomic Safety and Licensing Appeal Board Decision and that I have served a copy of the above document upon the persons listed below by depositing it in the United States mail, postage prepaid and addressed:
*Mr. John H. Frye III *Mr. Stephen J. Eilperin, Chairman Administrative Judge and Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 1
l 6 L
l7 *Mrs. Elizabeth B. Johnson, *Dr. John H. Buck Administrative Judge Atomic Safety and Licensing n Oak Ridge National Laboratory Appeal Board P.O. Box X U.S. Nuclear Regulatory Commission Building 3500 Washington, DC 20555 Oak Ridge, Tennessee 37830
*Mr. Gary J. Edles
*Dr. Quentin J. Stober, Atomic Safety and Licensing Administrative Judge Appeal Board Fisheries Research Institute U.S. Nuclear Regulatory Commission University of Washington Washington, DC 20555 Seattle, Washington 98195 Robert B. Pyle, Esq.
Richard J. Rawson, Esq. Suite 9, Oakwood Center Office of the Executive 4783 Highway 58 North Legal Director P.O. Box 16160 U.S. Nuclear Regulatory Commission Chattanooga, Tennessee 37416 Washington, DC 20555 Leroy J. Ellis, Esq. 421 Charlotte Avenue Nashville. Tennessee 37219 This 6th day of May, 1982. t l - tl l k a 'w e W. Walter LaR6che Attorney for Applicant Tennessee Valley Authority l l
- Appendix A of the brief was not sent to these persons because they previously received a copy of it.
o 8
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